Reporters Without Borders

Countries start signing anti-counterfeiting accord that was negotiated secretly

Countries start signing anti-counterfeiting accord that was negotiated secretly

Published on Thursday 29 September 2011.
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Japan and other countries that have already completed the required domestic procedures will sign the Anti-Counterfeiting Trade Agreement (ACTA) in a ceremony in Tokyo on 1 October. Governments have until May 2013 to sign the accord, which 37 countries, including the United States, Canada, Australia, Singapore, Switzerland and the European Union, negotiated without consulting their public or civil society.

Mexico is one of the countries that will not attend the ceremony although it participated in the negotiations. The Mexican senate adopted a resolution on 22 June asking the government not to sign it. Other countries, including Brazil, Russia and India, have publicly expressed their opposition to the accord.

The European Parliament adopted a pro-ACTA resolution on 24 November 2010 while pointing out that it was “fully aware that the agreement negotiated will not solve the complex and multi-dimensional problem of counterfeiting” but regarded it as “a step in the right direction”.

Reporters Without Borders urges the European Union and its member countries, especially France, to reject this accord, which contains many elements that violate freedom of expression. A study commissioned by the European Parliament that was released on 20 July stressed the treaty’s imperfections and advised against signing it.

In particular, Reporters Without Borders condemns:

  • The requirement that signatory countries establish commercial cooperation mechanisms for combating counterfeiting.
  • The right accorded to the relevant authorities to ask Internet Service Providers to identify their clients.
  • The requirement to criminally prosecute suppression of metadata (data identifying a file’s content and origins) and circumvention of Digital Rights Management (DRM).
  • The possibility for governments to define legal exceptions to DRM circumvention.

The last two points have the effect of banning censorship circumvention resources that are indispensible tools for ensuring the flow of news and information in countries such as Iran or China (see detailed article).

Finally, Reporters Without Borders reiterates its condemnation of the lack of transparency that surrounded the negotiations. The ACTA’s text was not made public until 21 April 2010, when it was released by the European Commission. That was three years after the negotiations had begun.

Earlier this month, Françoise Castex, a French socialist Member of the European Parliament, raised the possibility of referring the ACTA to the European Court of Justice in order to determine whether it complies with European law.

“The Legal Affairs Committee, of which I am a member, has decided to ask the European Parliament’s legal service if it complies,” Castex told Reporters Without Borders. “I don’t know if that will suffice and if the parliament, as it has the possibility, will not have to directly refer it to the European Union’s Court of Justice.” This would have the effect of suspending adoption of the ACTA.

“The ACTA is an international accord that was negotiated outside the existing multilateral institutions (specifically, the WTO) by the countries that wanted to do it. The countries that were not in agreement did not take part in the negotiations. One wonders what its effect and utility will be.” Reporters Without Borders encourages Castex’s initiative.

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