At the signing ceremony for the Anti-Counterfeiting Trade Agreement (ACTA) last weekend in Japan, Canada was in company with Australia, Japan, Morocco, New Zealand, the Republic of Korea, Singapore and, importantly, the United States.
But notably absent as signers was the EU, which appears to have problems in some member countries complying with the treaty. Also absent were Brazil, Russia, India, China and most of the remaining international community of any significance.
The ACTA had been under negotiation for several years and had been controversial from the outset. It creates binding obligations among members to ensure full, fair and non-discriminatory legal protection and regulatory transparency and a high level of civil and criminal enforcement in favour of intellectual property right holders, including in the critical area digital rights. In fact, it breaks new ground in recognizing the full extent of intellectual property rights in the digital era.
There are some other noteworthy points about the treaty.
First, the ACTA was negotiated as a stand-alone effort, sponsored by Japan and the US, outside any established institutional framework like the World Trade Organization (WTO) or the World Intellectual Property Organization (WIPO). Some might say that the exercise could only have made progress outside existing institutions like the WTO, where the Doha Round has been stalled for years.
Whether this orphan-like existence proves to be a stumbling block remains to be seen.
Second, a number of jurisdictions, like the EU and others, are not terribly keen on the robust enforcement obligations in the treaty, saying that it leans too far in favour of protection and civil and criminal enforcement and doesn’t adequately balance the legitimate rights of users.
Third, some critics have argued that the treaty is really an American effort to apply US standards around the globe. It’s interesting that Canada was among the seven signing countries this weekend, Canada not being among the top generators of intellectual property rights for several decades.
Lastly, regardless of the fanfare, signature of a treaty alone is relatively meaningless. Each of the signing countries, including Canada, have to follow through and ratify the treaty by passing the necessary internal measures to bring it into force domestically. Canada will have to pass the recently introduced Copyright Bill to do this.
For the US, there could be a need for Congressional approval and that process, as we know, is fraught with difficulties. Without the US as a full ratifying party, the ACTA could be in difficulty. Even with the US, the absence of the EU and the BRIC countries poses a problem.
There is no question the ACTA is a step forward in international law-making, codifying and consolidating state obligations towards owners of intellectual property by protecting against improper and illegal mis-use of those rights by others. There are many positive things about it in terms of attempting to bring piracy, counterfeiting and egregious mis-appropriation of intellectual property under some degree of coherent international control and penalty.
However, for the reasons explained, regardless of its many strong points, the jury is out on whether the ACTA will gain sufficient international traction in the months and years to come