Mexico City – An international treaty to combat copyright infringement and piracy, being negotiated by Mexico and other countries, could curtail expansion of the internet, violate people’s rights to privacy and freedom of expression, and undermine multilateral accords on intellectual property, activists warn.
Canada, the European Union, Japan, Switzerland and the United States announced their intentions to negotiate the Anti-Counterfeiting Trade Agreement (ACTA) in October 2007, and a number of other countries including Australia, Jordan, Mexico, Morocco, New Zealand, Singapore, South Korea and the United Arab Emirates have joined the subsequent formal negotiating sessions.
Six rounds of ACTA negotiations have taken place, and the seventh is to be held in Mexico in late January. After that the negotiators are scheduled to meet in New Zealand in April, and they aim to finalise the treaty document this year.
The draft treaty contains six chapters on topics including respect for intellectual property rights, international cooperation and institutional arrangements. The chapter on the legal framework for enforcing intellectual property rights deals with civil and criminal enforcement, border measures and internet issues.
It is the section on enforcing intellectual property rights in the digital environment that is causing the most concern among civil society organisations that are dedicated to promoting wider access to the internet.
ACTA negotiators are proposing that internet service providers should undertake proactive filtering of copyright material that users share with each other.
Furthermore, they suggest these companies should be obliged, subject to penalties, to deny internet access to those accused of copyright infringements. This could mean, for example, that a whole family could be cut off from the internet if one of its members is suspected of piracy, with no right to a trial or a lawyer.
This kind of agreement would imply adopting U.S.-style “notice and takedown” rules, under which internet service providers must remove material suspected of copyright infringement from the web, without a court order or examination of evidence
The “three strikes and you’re out” system would also be applied: if an internet user is accused of infringing intellectual property three times, he or she will be disconnected from the internet. Fines and prison sentences for offenders are also envisaged. “If I download a programme that lets me file share, and I am targeted for doing so, who will be monitoring my internet activity, and how? My rights would be infringed, because if a third party is aware of what I do, they must be monitoring my activities,” Agustín Ríos, Legal Committee vice president at the Mexican Internet Association (AMIPCI), told IPS.
AMIPCI links companies that influence the development of the internet industry, including major banks, e-commerce sites, internet service providers, consultants, developers and major portals. There are some 27.6 million internet users in Mexico, out of a population of 107 million.
Countries like France and Sweden already have laws similar to what ACTA negotiators are suggesting.
The Mexican constitution upholds the rights of access to information and of privacy, which means a treaty like ACTA may be in conflict with these guarantees.
So far, ACTA deliberations have been held in secret, which has infuriated non-governmental organisations in the United States, Europe and Mexico.
Draft documents leaked on the internet in November 2009 have been the only source of information about the negotiations.
In March last year the European Parliament passed a resolution calling for all documents related to ACTA to be made public. But the United States turned down the request, claiming national security concerns.
The governmental Mexican Institute of Industrial Property (IMPI), the Economy Ministry and the Attorney General’s Office are in charge of negotiating the agreement o behalf of Mexico.
The first round of formal talks was held in June 2008 in Geneva, Switzerland, and the second took place in Washington in July 2008. The group of countries met again that same year in October, in Tokyo, and in December, in Paris. In July 2009 they met in Rabat, Morocco and again in November in Seoul.
The issues raised by ACTA have been widely debated on blogs and social networks like Facebook and Twitter.
“The reforms proposed in this treaty would subvert the character of the internet, transforming it into a kind of cable television network, where providers would decide the contents to be transmitted on ‘their’ network and users would have to pay per view,” wrote Antonio Martínez, an activist for a free internet, on his weblog criticapura.com.
“It is essential that we express our opposition to the lack of transparency of this treaty, and make known our concerns over the violations of basic civil rights and of access to information that ACTA, according to the limited information available, is proposing,” says the openacta.org web site, put up specially to post information and discussion on the treaty.
“This agreement makes no sense, because international treaties already exist that address international cooperation to combat counterfeiting and piracy, and to protect copyright. This is not the right time for us to sign this treaty,” Ríos argued.
Washington has Mexico in its sights over illegal copying and distribution of films, music and computer programmes.
In this country, six out of every 10 compact discs are pirate copies and three out of four video games are counterfeit, according to the Organisation for Economic Cooperation and Development (OECD), known as the rich countries’ club.
In August 2009, IMPI sent a report to Congress indicating that counterfeiting is growing. In 2007 IMPI authorities tracked down 2.6 million counterfeit items, worth 800,000 dollars, while in the first half of 2009 two million items were identified, worth more than twice that amount.
Meanwhile, the Attorney-General’s Office seized over 53 million pirated articles in raids in the first half of 2009.
The four most affected sectors are computer software, music, films and books.
Modifying the customs and copyright law are on the Senate’s agenda for the first half of 2010, including the creation of a central register of imported brands to reduce the volume of counterfeit products getting through Mexican customs controls.
By law, only the president can sign international treaties, which must have the Senate’s approval. The upper chamber has therefore asked the government for all the documents related to ACTA.
AMIPCI will ask the Senate to call IMPI director general Jorge Amigo to the floor, to explain in detail the negotiations for the proposed treaty.
The group of countries is trying to create a legal framework in parallel to the World Intellectual Property Organisation (WIPO) and the various treaties it administers, because of what they regard as shortcomings in intellectual property protection and WIPO’s functioning.
This approach is also a way round the strong resistance to tighter regulations traditionally put up by countries like Brazil, China, India or Russia.
In December 1996, WIPO member states signed the Copyright and the Performances and Phonograms treaties, which came into effect in 2002. The Copyright treaty covers computer software and databases, and protects the rights of distribution, rental and transmission to the public.
The Performances and Phonograms (sound recordings) treaty protects the intellectual property of performers, such as actors, singers and musicians, and phonogram producers.
These binding legal instruments exist side by side with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), an annex to the convention that created the World Trade Organisation in 1994, which addresses industrial and intellectual property rights within the context of global trade.
“Sharing knowledge and information can never be regarded as piracy or counterfeiting. Intellectual property rights cannot be placed before civil liberties. Legislation on the internet must open it up, guarantee it, and widen access to it, not restrict or limit it,” says openacta.org.