The first officially released draft of the international Anti-Counterfeiting Trade Agreement (ACTA) was recently made available following the recent Tokyo round of negotiations. This was followed this week by the disclosure via Twitter of an apparently final version (although this latest version is still marked "Subject to Legal Review"). After several years of leaks and controversy this represents an opportunity to look at the treaty and its potential impact in the UK.
For background, the ACTA negotiations are with a goal of providing a plurilateral international framework that improves the enforcement of intellectual property laws. With negotiations beginning back in 2007, the principal concern is with the creation of international standards geared towards tackling large-scale infringements. However, from the sheer quantity of consumer interest style campaigning, and the notoriously secretive negotiation style adopted by the parties, one would be forgiven for expecting the treaty to be of a more far-reaching scope. In reality, whilst ACTA may carry a significant political punch, its legal implications may not be as drastic as once thought.
The treaty itself is at present a fairly brief document which can be split into a number of areas dealing with civil enforcement, border measures, criminal enforcement, enforcement of IP rights in the digital environment, enforcement practices, international co-operation and institutional arrangements.
As a treaty under international law, upon ratification national implementation would be required for the treaty to have significant domestic effect. The European Commission have previously released a statement that 'ACTA will not go further than the current EU regime for enforcement of IPRs', and it falls to be seen exactly what the real implications will be. One particular concern in the UK may be the implementation of statutory damages as per article 2.2:
"At least with respect to works, phonograms, and performances protected by copyrights or related rights, and in cases of trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following:
- pre-established damages, or
- presumptions for determining the amount of damages sufficient to compensate the right holder for the harm caused by the infringement, or
- at least for copyright, additional damages."
Statutory provision for copyright infringement in the UK, mainly provided in the Copyright, Designs and Patents Act 1988, does not go beyond issuing guidelines to the courts to consider the flagrancy of infringement, benefit wrongfully accrued, and additional damages as 'the justice of the case may require.' A more prescriptive statutory damages scheme would be a significant shake-up of the law in the area.
Another potential change is a widening of the scope for criminal liability for copyright infringement - or at least a change in the terminology. The final draft of ACTA refers to 'commercial scale' practices attracting criminality. This reference to scale could imply that the criminal aspect is more connected with the size of the infringement rather than an analysis of commercial intent.
With a number of MEPs from 'different political groups' posting a draft resolution on ACTA online for public comment as recently as 9 November, it seems that activity surrounding the treaty is only going to intensify over the coming months. Indeed, recently leaked documents seemingly indicate a further 'technical round' of negotiations to take place in Sydney, Australia at the end of this month.