Canada Signs ACTA: What Comes Next

Canada became an initial signatory to the Anti-Counterfeiting Trade Agreement over the weekend in Japan. Other countries to sign the agreement include Australia, Japan, Morocco, New Zealand, the Republic of Korea, Singapore and the United States.  That leaves out the majority of countries that were part of the negotiations as all the European Union countries, Switzerland, and Mexico attended the ceremony but did not sign. Canada's decision to sign is not surprising given its participation throughout the negotiation process and the flexibility that was built into the agreement. While there are many concerns with ACTA (both procedural and substantive), it is not the agreement the U.S. envisioned when it started the process several years ago.

The signing of the agreement does not mean the agreement is enforceable yet. ACTA stipulates that it takes effect when six countries have deposited instruments of ratification, acceptance, or approval. In other words, most countries must still ratify the agreement (much like the WIPO Internet treaties, signing indicates general approval of an agreement but being bound by the terms requires ratification). 

In Canada's case, this will require at least two bills. The first is Bill C-11, the re-introduced copyright bill that will address some of the digital copyright requirements. Note that ACTA's digital lock provisions are sufficiently flexible to allow changes to C-11. A second bill is also on the way. As I've posted before (here, here) Canada has an intellectual property enforcement bill drafted and ready to go. That bill will create new border measure powers and establish additional enforcement tools.  Look for Budget 2012 to include funding to support the intellectual property enforcement initiative that will pave the way for the IP enforcement bill and subsequent ratification of ACTA (as well as agreement on the Canada - EU Trade Agreement).

As for other countries, there is still considerable controversy with many hurdles in Europe, a Senate resolution opposing ACTA in Mexico, and doubts in the U.S. that ACTA can be implemented without implementing legislation. These issues will continue to play out even as countries that are major sources of counterfeiting activity rightly criticize ACTA as an effort to sideline the international community and craft rules behind closed doors that do not reflect a global consensus or a binding agreement on anyone excluded from the process.