ACTA Adds Enforcement Provisions, But Other Issues Should Be Addressed, IP Advocates Say
The latest draft of the Anti-Counterfeiting Trade Agreement (ACTA) does a better job than previous versions of addressing matters concerning deterrence and enforcement, but the agreement could be tougher on violations by foreign governments and make a greater effort to ensure that other rights aren’t violated, some speakers said Friday at a Washington International Trade Association event. The draft, released last month, takes up some issues not covered in the Trade-Related Aspects of Intellectual Property (TRIPS) agreement from the World Trade Organization, they said.
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ACTA improves the ability to enforce copyright law, said Emery Simon, Business Software Alliance policy counselor. During the TRIPS negotiations, “there was not a whole lot of discussion about the enforcement provisions,” he said. ACTA begins to look at problems like ineffective enforcement, lack of resources and “gaps in the ability of enforcement authorities to take action,” he said. The agreement also makes progress concerning deterrence, he said. “Damages are going to be better, I think, and the provisions on border enforcement can make a real difference as well.” Making people afraid to steal intellectual property is a good deterrent, Simon added.
Finalizing an agreement is crucial for the software industry, which touches most other industries, Simon said. “Software is an input to virtually every level of economic activity these days.” BSA estimates that the software industry loses about $50 billion a year to piracy, he said.
Although piracy is a problem, some loss estimates are absurd, said Ed Black, president of the Computer and Communications Industry Association. The benefits of the limitations of copyright, like fair use, are of “tremendous economic significance,” and the benefits are reduced “for fear of liability for conduct that we would not consider wrong,” he said. “We are in fact limiting certain parts [of the equation or of the ‘IP ecosystem'] and other values which we have in order to create intellectual property rights.” Competition could decrease, Black said.
Two questions must be asked, Black added: “Are we in fact urging foreign states to enact laws that could be bad for U.S. businesses? Are we signing up for some obligations that may be inconsistent with U.S. laws?"
ACTA also should provide ways to handle situations in which foreign governments are the thieves, Simon said. The U.S. government has issued an executive order requiring its government entities to only use legally obtained software, he said. “We'd like to see other countries do that as well and make that commitment.”
"It would have been good if there were an obligation under due process … to get better access to IP addresses,” to help figure out who the actual pirate is, Simon said.