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On Monday, June 14, Kaeley and Molly watched an EDUCAUSE webinar on the Anti-Counterfeiting Trade Agreement (ACTA), “Checkpointing the ACTA Debate – Where Are We, and Where Do We Go from Here?” In the webinar, Jonathan Band, an intellectual property (IP) lawyer, and Michael Petricone, senior vice president for government affairs for the Consumer Electronics Association, outlined the provisions of ACTA and discussed how it might impact IP, copyright, trademark, and patent enforcement globally.

Negotiations over ACTA began in 2006, but it wasn’t until April 21, 2010, that a draft was released, and the secrecy surrounding the negotiations has raised concerns and led to rumors. ACTA objectors are primarily concerned that it is not really about counterfeiting or trade, but rather about IP rights enforcement among developing nations. As Mr. Band put it, “[the] goal is for developed countries to sign ACTA and use as a club to beat up on [developing countries].”

Another concern is that because ACTA is an executive agreement and not a treaty, it does not require Senate approval, and would be in effect until a future President decided to terminate the agreement.

None of the countries involved in negotiating ACTA – US, EU, Japan, Canada, Australia, and NZ – want to change their copyright laws, so there is a large challenge in drafting language that all agree with and is enforceable without requiring a change in laws. Much of the draft text is still in brackets, indicating that it is still under debate/revision, so it is difficult to predict how ACTA will impact IP enforcement, assuming it is adopted at all. The provisions still under debate/revision are not those addressing counterfeiting (there is consensus, even among detractors, that those provisions are warranted), but rather those that would affect copyright and trademark enforcement and violations, patent infringement, geographical indicators, and statutory damages. There are concerns that some of the provisions in ACTA as currently drafted would stifle innovation by exporting provisions analogous to DMCA safe harbors and anti-circumvention without simultaneously exporting provisions that cover exceptions, such as fair use (unique to US copyright law).

As much of ACTA is still under negotiation, and the bulk of the webinar was on dissecting the legal framework of ACTA, it was a tad difficult to extrapolate how ACTA would impact libraries and academe. Nevertheless, one example given mentioned that American universities with overseas campuses in developing nations are not currently too concerned that actions covered under fair use in the US, but not technically allowable under the host countries’ copyright laws, are going to be stopped, as there is little incentive for enforcement. However, with the increased enforcement provisions in ACTA, without accompanying exceptions provisions ( which are not currently included), host countries would have more incentive to enforce violations that take place under their laws, potentially hindering scholarship at those campuses.

Definitely worth keeping an eye on!