The Japanese parliament has approved the Anti-Counterfeiting Trade Agreement.
The Japanese House of Councillors approved this treaty, known as ACTA, on August 3, by a vote of 217 in favor and 9 against. The House of Representatives followed suit on September 6, voting by rising from seats, without a count. Once the government deposits its instrument of ratification, acceptance, or approval, Japan would be the first country to complete the conclusion procedures for this controversial treaty. The ratification of five other signatories would still be required for the treaty to enter into force.
The Adoption of Another "TRIPS-Plus" Treaty
ACTA is an international treaty which aims at strengthening the domestic enforcement of intellectual property rights provided in the World Trade Organization's 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights, better known as TRIPS. ACTA is an extension of a series of bilateral trade agreements which incorporate so-called "TRIPS-plus" provisions. The ACTA provisions seek to strengthen the domestic enforcement of intellectual property rights largely in favor of right-holders and countries that export intellectual property, and thereby to reduce the flexibility that TRIPS has preserved with respect to its domestic enforcement provisions.
ACTA was adopted on April 15, 2011, and opened for signature on May 1. Eight states (Australia, Canada, Japan, Republic of Korea, Morocco, New Zealand, Singapore, and the United States) signed it last October 1, twenty-two states and the European Union on January 26 of this year, and Mexico on July 12. As of this August, it had thirty-two signatories.
The Rejection by the European Parliament
ACTA has invited considerable controversy, especially in Europe. As was widely reported, the European Parliament voted down the treaty on July 4, and its rejection also effectively delayed the ratification process outside the EU. As the President of the European Parliament summarized after the vote, ACTA was considered as leading to the restriction of consumers' privacy, civil liberties, and the free flow of information. Its adoption procedure has also frustrated the European Parliament. A high level of public attention drawn by the treaty's implications for individual rights mismatched with the low level of transparency pursued by the negotiating parties.
My colleagues, Christina Eckes and Elaine Fahey, initiated a Roundtable Discussions on ACTA in May at the Amsterdam Centre for European Law and Governance. I have joined their initiative in order to comment on the differences between ACTA and relevant TRIPS provisions. Among the many controversial points regarding ACTA, here I highlight the following two points.
First is the definition of "commercial scale" (Art. 23(1)), which determines the applicability of criminal enforcement under Section 4 of Chapter II of ACTA.
Article 23(1) provides (emphasis added):
'Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. For the purposes of this Section [on criminal enforcement], acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage'.According to the second sentence just quoted, the acts on a commercial scale include those carried out as commercial activities for direct "or indirect" economic or commercial "advantage." The use of the term "indirect…advantage" seems to suggest that infringing acts could amount to a "commercial scale" insofar as they are commercial activities and even if those activities do not directly create commercial gain.
The definition of "commercial scale" generated public oppositions precisely because criminal enforcement provisions under ACTA apply to the acts carried out on the internet (Art. 27(1) of ACTA). A concern was raised to the effect that the private downloading of music or videos might also fall under ACTA's criminal enforcement.
During the parliamentary debate in Japan, government officials assured the inapplicability of criminal enforcement provisions to private downloading. Nevertheless, the term of Article 23(1) referred to above does not appear to entirely leave out the anxiety over the exact reach of "commercial scale" and its expansive reading in practice.
Ex Officio Criminal Enforcement
Another point that stirred concerns was Article 26 of ACTA regarding ex officio criminal enforcement. Article 26 provides (emphasis added):
'Each Party shall provide that, in appropriate cases, its competent authorities may act upon their own initiative to initiate investigation or legal action with respect to the criminal offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal Offences) for which that Party provides criminal procedures and penalties'.Article 26 obligates a party to provide, "in appropriate cases," its authorities to act upon their own initiative to initiate investigation or legal action for trademark and copyright offences. This ex officio enforcement also applies to the offences carried out on the internet (Article 27(1) of ACTA).
Article 26 gives rise to a particular problem in Japan because under the Copyright Act, certain copyright-related criminal offences are Antragsdelikte, or motion offences, for which prosecution takes place only upon the filling of a complaint. The Japanese Minister for Foreign Affairs stated that ACTA was not to alter the motion-offence provisions under Japan's Copyright Act. The government's existing position is, however, based upon the construction of the highly contextual terms "in appropriate cases" in Article 26 of ACTA: at present, the Japanese government does not regard it as "appropriate" to have ex officio criminal enforcement, despite the term "shall" used in Article 26.
Ambivalent Political Narratives
The ambivalent political narratives given to ACTA have not reduced public opposition toward the treaty. In response to international criticisms against ACTA, key negotiating states and the EU have started to de-emphasize the significance of ACTA on domestic and EU law. Before parliamentary approval, the Foreign Minister of Japan also suggested that ACTA should require no further changes to the existing domestic law.
If ACTA brings little change to domestic law, however, one has to wonder why negotiating states and the EU have made efforts to produce a new treaty in the first place. The political narrative, by de-emphasizing the treaty's domestic impact, ironically increases the concern toward it.
ACTA can be seen as the epitome of international treaty-making which tends to discount its impact on domestic actors, including private individuals. Given the unsatisfactory terms and the public concerns, the redrafting of ACTA appears to be necessary. The rejection by the European Parliament has overshadowed any legitimate objectives that the negotiating states and the EU might have sought at the outset. However, the Japanese parliament's approval has reminded us of the fact that the procedural and substantive concerns regarding the treaty have not gone through all signatories.
Here are some sources from which to learn more about this agreement:
► Articles published in the American International Law Review, (2011, vol. 26, no. 3).
► A series of ACTA analyses published in the American University Washington College of Law, Program on Information Justice and Intellectual Property Research Paper Series, 2010-2012.
► Kimberlee Weatherall, "Politics, Compromise, Text and the Failures of the Anti-Counterfeiting Trade Agreement", (2011) 33 Sydney Law Review 229.
► Bryan Mercurio, "Beyond the Text: The Significance of the Anti-Counterfeiting Trade Agreement", (2012) 15:2 Journal of International Economic Law 361.