Recently, the European Commission, the Canadian government and possibly other governmental bodies felt forced to shed more light on the ongoing international negotiations concerning the Anti-Counterfeiting Trade Agreement (ACTA).
The state of negotiations as per mid-January is now available on the Internet (such as here).
Many politicians and activists are currently looking for signatures for a motion by four Members of the European Parliament, demanding a more transparent process and voicing certain expectations concerning the content of the future treaty.
The fight against product piracy is a noble cause
It worries me a little bit that some critics of the proposal make such radical demands as "Stop ACTA". Nothing hurts the credibility of reasonable IP-related causes more than protecting, or at least appearing to protect, counterfeiters and other criminals.
There's no denying that product piracy is a serious problem. We live in an age in which non-material goods are the most important industrial resource. There must be effective prosecution of those who (no matter in which corner of this planet) refuse to accept the rule of law in this respect.
I know that some critics of the current IP system oppose the terms "intellectual property" as well as the use of "piracy" in connection with copyright and trademark violations. I have no problem with either term as long as no unresaonable expectations are derived from them. "Intellectual property" summarizes various rights that have differences as well as common elements. As long as people understand that physical and non-material "property" must be structured differently (in terms of rights, obligations, limitations), there's nothing wrong with it. And while "piracy" in its original sense is a suboptimal analogy for illegal copying and counterfeiting, the theft of intellectual property is clearly a bad thing that justifies the use of strong terminology.
Separating pretexts from serious problems
That said, serious issues such as product piracy must not be used as a mere pretext for imposing legislative measures that would go far beyond the legitimate objective pursued.
I can see why the intransparent ACTA process made some of its critics uneasy. The World Trade Organization (WTO) created its offspring, the World Intellectual Property Organization (WIPO), for dealing with such issues in a reasonably transparent and democratic manner. Counterfeiting clearly would fall within WIPO's scope, so if WIPO was purposely circumvented in connection with ACTA, this raises questions as to whether a worldwide group of experts working out the treaty simply preferred to be left alone instead of having to be accountable to a broader political audience, or even parts of the general public.
Therefore, the European Parliament's initiative for more transparency in the process is important and constructive. But let's be realistic about how much the European Parliament will really be able to achieve. MEPs have severe resource constraints and the analysis of the complex issues involved here may overtax the amount of working time they can make available for this matter. Also, ACTA addresses some matters of criminal law, which is still a responsibility of the EU Member States (not of the EU institutions).
A different effectiveness question might be asked about the extent to which ACTA can really bolster the fight against product piracy. In the industrialized democracies of the West, the protection of intellectual property rights already is at a fairly high level. In some other parts of the world, piracy is pretty much a part of the overall economic growth strategy (not a good idea in the long run for those countries, but a short-term approach in some of them). I'm not sure that so-called "one-disc countries" (the idea of a country in which only one physical copy of a given piece of software would be purchased legitimately and all ohers would use illegal copies) will all of a sudden turn into good-faith protectors and enforcers of IPRs just because of a treaty like ACTA.
Willful patent infringement vs. independent inventions
Based on the mid-January draft, it seems that one of the key issues in the ACTA negotiations is the extent to which patent infringement should be included as a form of piracy.
Some governments, especially the US government and the representatives of the EU, appear to favor the full inclusion of patent issues in ACTA. Others, such as Canada and New Zealand, seem to be in favor of limiting ACTA's scope, at least in essential areas, to copyright and trademark infringement, thereby excluding patent issues.
While copyright, trademark and patents are legally very similar liability regimes, there's certainly a fundamental difference in terms of how likely any given infringer is to be a "pirate". If someone copies a musical recording or a complete piece of software and does so on an industrial scale, the only rational explanation is that it's an act of piracy. But patent infringement is very often unintended, due to the fact (among other reasons) that all patent applicants and their attorneys try to phrase patent claims as broadly as possible, thereby maximizing the likelihood of infringement even by honorable people.
With software patents, unintended infringement is the norm and purposeful piracy is a rare exception. Apart from that, software piracy can be pursued on the basis of copyright without any need to bring patents into play.
Article 2.2 of the ACTA draft shows that there's a real danger ACTA may end up giving patent holders unreasonable leverage over unintentional infringers. In connection with damages, that paragraph has to either apply to all infringers or try to draw a line between criminals/pirates and other infringers. It looks like the EU and New Zealand proposed the insertion, after the word "infringer", of the passage "who knowingly or with reasonable grounds to know, engaged in infringing activity".
While it's good to at least try to draw that line, that wording still worries me a little bit. Someone who never steals anything from anybody and just happens to develop software on which someone else's patent reads could be considered a pirate once he has "reasonable grounds to know". This could mean that a single letter (maybe a formal cease-and-desist letter, maybe much less than that) pointing out potential patent infringement might turn an honorable computer programmer into (for purposes of ACTA) a product pirate. That's inequitable.
The biggest improvement to patent law that I could imagine would be an "independent-invention defense". Treating someone as a pirate following the receipt of a letter asserting infringement would be the very opposite approach.
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