Monday, 23 November 2009

Afro-IP has not been hot on the heels of the developments surrounding the not-so-secret Anti-Counterfeiting and Trade Agreement which, at this stage, has been "secretly" negotiated with only one African country, Morocco. However, since the ACTA is being negotiated outside of WTO, WIPO, the G8 or other formal existing structures and because counterfeiting is Africa's single largest IP dilemma, Afro Leo believes that the plurilateral trade agreement requires more attention from African commentators and interested parties than has currently been the case.

The scope of ACTA is broad, including counterfeit physical goods, as well as "internet distribution and information technology". The leaked document [on wikileaks] includes a provision to force Internet Service Providers (ISPs) to provide information about suspected copyright infringers without a warrant and also conflicts with the burden of proof of guilt. The main thrust of ACTA is to provide safe harbor for service providers so that they may not hesitate to provide information about infringers; this may be used, for instance, to quickly identify and stop infringers once their identities are confirmed by their providers. Similarly, it provides for criminalization of copyright infringement, granting law enforcement the powers to perform criminal investigation, arrests and pursue criminal citations or prosecution of suspects who may have infringed on copyright. It also allows criminal investigations and invasive searches to be performed against individuals for whom there is no probable cause, and in that regard weakens the presumption of innocence and allows what would in the past have been considered unlawful searches. More pressingly, being an international treaty, it allows for these provisions—usually administered through public legislation and subject to judiciary oversight—to be pushed through via closed negotiations among members of the executive bodies of the signatories, and once it is ratified, using trade incentives and the like to persuade other nations to adopt its terms without much scope for negotiation. (Wikipedia)

The recent Mr Video case is an illustration of how RSA copyright law contains provisions designed to assist the American film industry (the letting/importation provision). With broadband starting to become a way of life for many RSA consumers the problem of Internet piracy will no doubt start to become much more prominent. The treaty is likely to have ramifications (perhaps very positive ones) for Nollywood - the exponentially growing film industry in Nigeria. Open access groups on the other hand will be up in arms. Is it time to further the debate with more African perspective or is this legislation so practically incompatible with most African IP enforcement regimes, that comment is meaningless at this stage? Does the SAIPPL (the largest formal body of IP practitioners in Africa) have a view?

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