There are some serious flaws with the 2011 Anti Counterfeiting Trade Agreement, which are preventing the U.S. as well as quite a few other countries from ratifying this agreement.  

Many prominent political analysts view the 2011 Anti- Counterfeiting Trade Agreement as being a failure.  I believe that if this treaty were amended or protocols are added so that its terms address the issues which many governments have been objecting to, then the minimum number of countries which are required to sign or ratify this treaty in order for it to be entered into force could be met, and this treaty could be entered into force   Alternatively, if the parties who were involved in writing the 2011 agreement are not going to attempt to amend or add protocols to the ACTA, then a new treaty which addresses issues relating to international counterfeiting in the 21st century will be needed.

The ACTA is not a United Nations treaty.  The ACTA was written by representatives from a number of the national governments and representatives from the European Union.  Representatives from professional associations in a number of industries were also consulted during the series of negotiations which led to the ACTA.

One of the purposes of this treaty was to create an international organization which is intended to ensure that patents, trademarks and copyrights are not infringed upon.  This proposed organization is not intended to replace the existing agencies which are involved with overseeing international patent, trademark and copyright enforcement such as the International Trademark Association, the World Intellectual Property Organization or the World Trade Organization, but rather it would be intended to be a new organization which would work in conjunction with the efforts of those organizations, national governments, regional IGO’s, INTERPOL, and the United Nations to enforce international copyright, trademark and patent laws.  

A History Of The Negotiations Which Led To The 2011 ACTA

Prior to the 1990’s, most of the issues relating to counterfeiting throughout the world related to the illicit production of as well as the international smuggling of counterfeit merchandise.  

Beginning in the 1990’s, legislators and law enforcement agencies in nearly every country in the world had to begin to address digital piracy.  People’s access to information throughout the world needs to be protected, and copywrites and intellectual property also need to be protected.   People throughout the world do deserve free online access to non-copyrighted materials as well as to materials which the national and international copyrights have expired (such as books, music and visual materials), and concurrently the businesses or people who own copyrights of materials do need to ensure that no one is attempting to give free access to materials which they have the legal rights to charge fees for.  The legal issues relating to copyrighting and digital piracy are very complex, as are the technologies which are involved in digital piracy. Since the 1990’s, tracking and locating hackers throughout the world who have been attempting to offer free online access to copyrighted materials has been a sort of “cat- and- mouse game” for law enforcement agencies throughout the world.  The technologies which are involved in overriding the measures which are intended to protect copyrighted materials continue to become increasingly sophisticated, as does the software which is available to law enforcement agencies which are involved with investigating and tracing hackers.

Negotiations regarding issues relating to new frontiers in counterfeiting began in 2006.  Representatives from a number of national governments, the EU and professional organizations began to discuss the need for an international agreement which would address issues relating to counterfeiting in the 21st century.  The parties who negotiated the terms of the ACTA had decided that a new international agency which is intended to address issues relating to counterfeiting and digital piracy was needed, presumably because the existing organizations which are involved with attempting to protect patents, trademarks and copyrights throughout the world were all faced with a sudden large increase in the number of digital pirates that they have to investigate and arrest.  The terms of the ACTA were written primarily during a series of nine meetings which were held in nine different countries from 2006 through 2010. 

While the text of this agreement can be found very easily by typing “2011 ACTA” into any search engine, the details of the negotiations which led up to writing the text of this treaty have never been made available to the public.  However, the reasons that many governments refuse to sign party to or ratify this treaty are well known. Because there is no information available regarding the concerns that the representatives from various national governments, professional associations and interest groups may have raised during the original negotiations of this treaty, it is difficult to make any realistic guesses as to what might occur if amendments or protocols were to be proposed, though it is clear that if the flaws in this agreement are addressed and rectified, a number of governments would likely be more eager to sign party to the agreement as well as ratify it.

Why Have So Many Countries Refused To Sign Party To This Treaty?

There are some serious flaws in the ACTA, which is the reason that only 31 countries have signed party to this treaty so far, and Japan has been the only country which has ratified this treaty.  Specifically, although the ACTA was intended to make it easier for law enforcement agencies throughout the world to investigate digital piracy, the terms of the ACTA do not effectively address the need to counter digital piracy with the need for people throughout the world to have access to online databases from which they can access books, archived news articles, information about scientific research, music, videos and other digital media.  A second reason that many governments throughout the world will not sign party to or ratify the ACTA is that the terms ACTA do not properly distinguish between generic medications and counterfeit medications.  

The sections of the treaty which are intended to protect copywrites and intellectual property could end up restricting peoples’ access to information.  As I mentioned, no information about the negotiations which led to the ACTA have yet been made available to the public, so I cannot know for certain, but I strongly suspect that the ACTA’s inability to properly balance the protection of copywrites, trademarks and patents with the need to allow people throughout the world to continue to be able to access information and archived media via the internet was not intentional.  Because the technologies which enable people throughout the world to access information via the internet, both legally as well as illegally are evolving very rapidly, it was probably difficult for the people who were negotiating the ACTA to keep up with new developments in digital piracy.   

A second reason that many governments have been hesitant to sign party to this treaty or to ratify this treaty is that the terms of the ACTA do not properly distinguish between generic medications and counterfeit medications.  Generic medications are medications in which the patents have expired, thus enabling pharmaceutical companies to legally produce them and sell them at a low cost. By contrast, counterfeit medications are particularly dangerous because they are manufactured illegally without being monitored or inspected by any overseeing body and there is no way of knowing what is contained in them.  Many hundreds of millions of people throughout the world need access to affordable medications, and hospitals and medical offices throughout the world continue to rely on patients’ access to generic medications.  

These are very serious flaws, but these issues can be addressed by adding amendments or protocols to this treaty.  The terms of the ACTA can be changed if all of the parties which have signed it agree to amend it, and new amendments and protocols can be added.  The ACTA is still one of the most comprehensive documents in the world which attempts to address all of the issues relating to counterfeiting in the 21st century.  

The alternative would be for the parties who were involved with writing the 2011 agreement to write an entirely new treaty, which would be a lengthier process than amending the ACTA.

There may also a third reason why some governments may be refraining from signing party to or ratifying the ACTA or any subsequent protocols or new international treaties which address counterfeiting, but this will only be relevant to a small handful of governments throughout the world today.  There may be some countries in which organized crime groups maintain a degree of influence within their national governments, and therefore, those governments will not sign party to this treaty because corrupt politicians within those governments are profiting either directly or indirectly from the manufacture and sale of counterfeit merchandise or from digital piracy.  However, corrupt politicians who have been bribed by organized crime groups would only account for the reasons that only a very small handful of countries are hesitant to consider signing party to this treaty.

The U.S. Has Been A Leader Of Developing Technologies Which Detect Counterfeit Products For Many Decades

 The U.S. government did sign party to this treaty in 2011, but we’ve not ratified it.  The U.S. is currently in compliance with the most of the terms of this agreement which address counterfeit merchandise.  Neither former President Obama nor President Trump has sent this agreement to Congress to approve ratification because the U.S. government would not be able to comply with the terms of the ACTA which address access to online information as well as generic medications.  

Counterfeiting is not a “Democrats vs. Republicans” issue, and counterfeiting is not an issue in which any of the third parties would likely support either.  Nobody anywhere benefits from the global trade in counterfeit products except for the criminals who manufacture, smuggle and sell them. Counterfeit merchandise harms everyone.  Most counterfeit goods are of inferior quality to the genuine products, but some counterfeit goods are not only poorly made, they are actually potentially dangerous because they meet no safety standards.  

If the flaws in the ACTA are rectified via new amendments or protocols , ratifying the agreement could potentially benefit every U.S. citizen.  Even people who never purchase any counterfeit products and people who never purchase products that they think are genuine, and later discover that they’ve inadvertently purchased a counterfeit item, still end up paying for the costs of the annual global trade in counterfeit products because our Federal and state taxes pay the salaries of Customs And Border Patrol agents, FBI agents as well as the agents within state and city police departments who are responsible for inspecting, identifying, investigating and destroying shipments of counterfeit merchandise.  The ACTA is intended to reduce the manufacturing of counterfeit goods throughout the world, and this would enable agents who work for a number of law enforcement agencies to concentrate on other issues.  

For many decades, branches of Federal agencies such as the FBI and Customs And Border Protection have been allocating a lot of funding and personnel towards inspecting shipments of merchandise, and the U.S. has become more efficient than most countries in the Americas in terms of of intercepting and destroying shipments of counterfeit merchandise each year.  The FBI and the USCPB have been working in conjunction with comparable agencies in a number of countries throughout the world in investigating organized crime groups and criminal gangs which produce and smuggle counterfeit products for many years. The FBI and CBP share some of their technologies which are involved in detecting counterfeit products with comparable agencies in other countries, the comparable agencies in other countries share their technologies with the FBI and CBP, and the cooperation has always proven to be mutually beneficial.  

The Role Of The U.S. Federal Government In Either Amending The 2011 ACTA Or Replacing The ACTA With An Entirely New Treaty:

     While I was researching this article, I could not find any evidence that politicians within any national governments, IGO’s or any of the relevant professional organizations who were involved in writing the terms of the 2011 ACTA have yet proposed either amending the ACTA, adding protocols to it or replacing it with an entirely new treaty.  From the lack of any evidence that any new amendments or protocols or a new treaty have been suggested, I’m going to assume that there have not been any new proposals regarding amending or rewriting the ACTA since 2011. However, there was a great amount of secrecy regarding the initial talks which led to this treaty beginning in 2006, so it is possible that some of the parties who were involved in the original negotiations may be considering continuing to discuss either amending the agreement or replacing it with a new one, and no information regarding this has been released to the news media in any countries yet.

     Because the initial negotiations which began the process of writing the ACTA began in 2006, and the terms of the agreement were not finalized until 2011, I suspect that it would take less time for the parties involved to amend, revise or add protocols to the ACTA than it would for them to write an entirely new agreement.  The flaws in the ACTA do need to be addressed, or else the treaty will never be entered into force. If the ACTA is never entered into force or it is not replaced with an entirely new agreement, then a new international agency which is intended to ensure the protection of copyrights, patents and trademarks will not be formed.  The existing agencies which are involved with these issues will continue to be the only agencies which enforce the existing laws and investigate counterfeiters and digital pirates, and throughout the course of each year of the 2000’s and the 2010’s, counterfeit merchandise, international smuggling, and digital piracy have continued to enable criminals throughout the world to earn hundreds of billions of dollars, if not trillions of dollars every year. A new international agency such as that which was proposed in the terms of the ACTA would further streamline the process of law enforcement agencies in countries throughout the entire world sharing information and technologies which are needed to investigate modern counterfeiters and groups which engage in digital piracy.

Will The 2020 Elections Effect The U.S. Federal Government’s Views About This Treaty?

It’s still early to answer this.  So far, I’ve not heard any of the Democratic Party candidates mention this treaty.  Neither President Trump nor anyone within the Trump administration’s cabinet have mentioned this treaty in any press statements.  And I’ve not heard any of the third parties’ candidates mention this treaty either. However we still have approximately 15 months until the elections.  It is still possible that some of the candidates who are presently in the process of campaigning for the 2020 elections may decide to take interest in this treaty, in which case proposing working with representatives of many of the governments of the world to amend the ACTA and the subsequently sending this treaty to Congress for ratification may still become part of the campaign platforms for some of the candidates for next year.

Scott Benowitz

Scott Benowitz is a staff writer for Afterimage Review. He holds an MSc in Comparative Politics from The London School of Economics & Political Science and a B.A. in International Studies from Reed...