IP: Is ACTA Europe’s SOPA?

The European Parliament investigates the pros and cons of the IP legislation

On Jan. 18, 2012, neglected encyclopaedias were taken down from bookshelves, as Wikipedia.com closed its virtual doors to people in the English-speaking world. They did so in protest against the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA), two pieces of prospective U.S. legislation regarding the use of copyright material on the Internet. Now a similar storm is brewing in Europe over an international treaty known as ACTA (the Anti-Counterfeiting Trade Agreement).

SOPA and PIPA were highly controversial and have since been withdrawn, but the issues they raised are still relevant. The focus of the Internet battleground has therefore now shifted to Europe, where the European Parliament is currently scrutinising ACTA.

SOPA and PIPA were intended to combat Internet piracy of copyright works, such as books, films and music. This has long been an issue and there are already laws in place which attempt to deal with the problem. These include the U.S. Digital Millennium Copyright Act 1998 (DMCA). Section 512 of the DMCA sets out notice and take-down rules that allow an Internet service provider to take down content in response to a complaint without liability (either to the content owner or the person who posted it). Europe has similar exclusions of liability for "mere-hosts." However, the extent of the exemptions has been the subject of litigation on both sides of the Atlantic. Further, there are those who feel that the existing laws make it too easy to evade liability for infringement and do not go far enough in protecting intellectual property.

SOPA and PIPA focused their attention on infringing content stored on foreign servers. They proposed a right to seek a court order against sites accused of "enabling or facilitating" infringement. That proved highly controversial, as it could have led to a website being shut down even if it did not itself host infringing content—merely displaying a link to illegal content stored elsewhere might have been enough for the website to be closed. 

Many of the protests against SOPA and PIPA were framed in terms of the preservation of Internet freedoms but, unsurprisingly, corporate opinion was, for the most part, divided by reference to business models. Content providers, such as film industry bodies, television networks and publishers were generally in favour of SOPA and PIPA. Web companies whose business models rely on user generated content, such as Facebook, Twitter and Wikipedia were not.

Those interested parties are now looking at ACTA. The European Union (EU) is keen to stress that ACTA will not create new intellectual property rights, laws or criminal offences. Its aim is to establish efficient and broadly common rules for how intellectual property right-holders can enforce their rights in practice in all of the signatory countries. But not everybody sees it that way. In February, large-scale demonstrations took place on the streets of Germany, Poland and the Netherlands, and the EU Parliament received a petition against ACTA signed by more than 2.4 million Internet users. Many of the protestors feel that the treaty is draconian. They also object to the seemingly clandestine process that brought it about.

Indeed, although ACTA has only recently made the news, it is reportedly the result of years of international negotiations behind closed doors and has already been signed (but not yet ratified) by 31 countries including the U.S ., Japan and 22 EU nations.

However, ACTA contains provisions about the harmonization of criminal sanctions, an area that the European Union cannot legislate on without the agreement of the individual member states. ACTA will therefore have to be ratified both by the European Parliament, and by each of the 27 EU member states. As of now, not all of the member states have signed and the European Parliament has yet to ratify it.

The European Parliament is currently investigating the conformity of ACTA with the European Charter of Fundamental Rights. If it is found wanting, the Parliament may not ratify the treaty. In the meantime, a propaganda war rages with inflammatory examples of both the consequences of implementing ACTA and the consequences of missing the opportunity to stem the tide of infringements.

One side claims that ACTA will lead to arrests of travellers crossing borders, simply because they might have an infringing song on their MP3 player. The other side highlights the links between large-scale infringement activity and organized crime.

Regardless of which side of the copyright fence you sit on, there are undoubtedly interesting times ahead.

Contributing Author

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Robert Lands

Robert Lands is head of intellectual property and media at Central London law firm, Finers Stephens Innocent LLP. He specializes in intellectual property and related...

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