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The Patriot Act of Intellectual Property

June 10, 2008

I was at a meeting recently to discuss what is now being termed, as The Patriot Act of Intellectual Property. Some of the leading economic powers including the US, European Commission and Japan have been negotiating an agreement, the Anti Counterfeiting Trade Agreement (ACTA) which attempts to redefine IP enforcement. The Bush administration is particularly keen that they finalize this agreement before the end of his term. At the moment the substantive content of the agreement is not known, and the few details that are available are only because of a leaked document of the US government available in Wikileaks.

The strategy is similar to the one adopted for the drafting of the TRIPS agreement. Draft a fantasy agreement in secret agreement, start pushing it through bi lateral free trade agreements (using small countries as a prop) and then institutionalize it through a multilateral forum such as WIPO.

The ACTA focuses on strengthening global enforcement through the criminalization of non commercial infringement, establishment of border controls etc ( This has probably been the scariest rumour about the ACTA that it enables suspicious laptops and ipods to be searched with penalties if infringing material are found). The aim of the Agreement according to the USTR is to build a “strong and modern legal framework” to “bring pirates to justice”.

IP Justice has released a white paper on the ACTA in which they claim that the possible framework that will be established include :

i) Criminal enforcement – criminalizing non-commercial infringements (lower the international legal standard since the existing standard under the TRIPS Agreement Article 61 provides criminal provisions against commercial infringements). Legal due process rights during criminal proceedings are on the chopping block with ACTA too.

ii) Border measures – deputize tax-payer funded customs and border agencies to become “copyright cops” (when they aren’t busy protecting national security). When luggage or laptops are searched at airports, the “copyright cops” will be authorized by ACTA to search personal music collections to look for evidence of P2P file-sharing or burned CDs and DVDs.

iii) Civil enforcement — open-up local civil courts and national legal systems to foreign companies for filing infringement lawsuits against the locals. ACTA will create new forms of legal liability for third parties over infringements of others, or lowering existing standards for secondary (intermediary) liability.

iv) Optical discs (CDs / DVDs) – emphasis on more rights for music and movie industries and products distributed by CD and DVD.

v) Internet distribution and information technology – focus on restricting Internet distribution of information including Peer-2-Peer (P2P) file-sharing, creating liability for search engines and other online service providers, requirements that ISPs police and control Internet content.

3 Comments leave one →
  1. Aditya Nigam permalink*
    June 12, 2008 11:33 AM

    Quite scary, I must say, Lawrence. But the perennial optimist in me says cops – at least in ‘most of the world’ – cannot police the kind of everyday, molecular activity of sharing. Would like a little more detailed comment from you.

  2. Lawrence Liang permalink
    June 12, 2008 1:29 PM

    Hi Aditya, I Agree that at the nuts and bolts level, this is really impossible to enforce, but I guess the point is not to actually enforce all cases. The establishment of a regime like this serves a logic of deterrence through the setting of an example. Prosecute one or two cases, publicize this in a big way in the media so that it becomes a media event and inculcate an ecology of fear. The Benthamite logic of the panopticon shows it ugly face again.

    In this case its seriousness arises from its incorporation within the framework of customs and immigration control. Who for instance would risk going to a foreign country with pirated material if there is even a remote possibility that one could be fined, arrested or both at customs and immigration.

    Having said that, I would also add that this ‘searching through laptops and hard drives’ clause is possibly speculative at the moment, or atleast I hope so.

  3. June 13, 2008 9:57 AM

    Lawrence, searching through laptops is actually in the realm of possibility. It is already in practice at the Changi Airport. But you are right about the deterrence effect as we have seen in the case of piggybacking on neighbor’s wireless connections. There was only one highly publicized instance of actual prosecution in Singapore. http://tinyurl.com/5asryd
    contrary to fears of a flood of prosecutions, there has been none since then. But still you can never be sure …

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