Anti-counterfeiting trade agreement likely to make criminals out of artists

The controversial Anti-counterfeiting trade agreement (Acta) signed by 37 countries last week is likely to hit thousands of artists who "sample" other works

The controversial Anti-counterfeiting trade agreement (Acta) signed by 37 countries last week is likely to hit thousands of artists who "sample" other works as well as criminalise profit-driven online pirates.

Its definition of pirated copyright goods includes products "made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright".

The agreement is aimed mainly at organised crime gangs that make counterfeit goods or infringe copyright works for profit. It offers rights holders the possibility of criminal sanctions against infringers, as well as a way to recover money lost to fraudsters and punitive damages.

The Department of Business, Innovation & Skills, which has overseen UK participation in the talks, says it is still talking to the EU, but believes existing legislation already meets the needs of the agreement, a spokeswoman said.

"Acta will provide an international framework that strengthens global enforcement of intellectual property rights (IPR) through better co-ordinated international co-operation; establishing best practice in enforcement methods; and a more coherent legal framework," she said.

She said the EU negotiated a co-ordinated position on behalf of the EU as a whole, since most areas covered by Acta relate to existing EU laws.

"New intellectual property rights, laws or criminal offences should not be created by Acta," she said. "We believe no additional legislation is needed to realise the agreement as existing laws fulfil its aims."

If this means the controversial Digital Economy Act, passed in haste at the end of the last parliament, then crucially, from rights holders' point of view, the agreement means they will have state help in pursuing what up to now has been a civil issue. Acta will make it cheaper and more profitable for them to pursue alleged counterfeiters and illegal file-sharers.

Rights holders have already won a partial victory in that the government has said internet service providers must meet 25% of the cost of an enforcement process.

Rights holders have constantly said that they are after deliberate illegal file-sharers. But the activities of ACS:Law in pursuing its client's interests, namely sending tens of thousands of dunning letters to alleged infringers without providing evidence that has been tested in court, show this is not necessarily the case.

Even if ACS:Law did aim at legitimate targets, others may be caught up. Hip-hop and rap musicians who sample riffs from other artists could be affected. Iconic modern art derived from copyrighted work, such as Andy Warhol's screen prints Campbell's soup tins and Marilyn Monroe, or even Roy Lichtenstein's Whaam! and Blam! could have led to criminal prosecution under Acta.

Even developers who re-use other programmers' code as a matter of course in their systems could be liable, some say.

Leading ISPs BT and TalkTalk have asked for a judicial review of the Digital Economy Act. It can't come soon enough.

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