New Internationalist

ACTA: undemocratic, dangerous and wrong

If, as Mark Getty famously claimed, ‘Intellectual Property is the oil of the 21st century’, then the Anti-Counterfeiting Trade Agreement (ACTA) has something of the character of a covert black-op in that war. A covert black-op which will benefit corporate power. The whole thing has been negotiated in secret between rich countries in a policy-laundering scheme designed to avoid the meddlesome interference of democratic debate, transparency or dissent.

Like the recently defeated SOPA/PIPA legislation in the US, ACTA will introduce de facto censorship of the internet, but ACTA goes one step further and introduces dangerous provisions that can be used by multinationals to restrict access to generic medicines to people in the Global South.

Lobbyists for big pharma have added their own clauses into the agreement that require customs officials to treat generic medicines as if they were counterfeit goods and seize them.

‘Negotiating countries are cynically using legitimate fears of counterfeit medicines to exert greater control over the trade in generic medicines to poor countries,’ says Oxfam spokesperson Rohit Malpani. ‘ACTA is proposing a new, expanded framework of intellectual property protections on behalf of multinational drug companies which will be combined with border measures to stifle the trade in legitimate generic medicines. This will mean that poor people will be denied legitimate and life-saving generic medicines.’

The obfuscatory tactic of intentionally confusing one thing with another is nothing new on behalf of the multinationals. In fact the whole notion of intellectual property is deeply problematic, confusing as it does the three very different phenomena of copyright, patents and trademarks. Throwing counterfeiting into the mix bamboozles even more. Now, it suddenly becomes possible to talk about countries trying to save lives as if they were some geezer selling knock-off Rolexes down the market. Or to speak of people who share ideas, computer code or music as ‘pirates’.

The WHO estimates that 1.3 to 2.1 billion of the poorest people in the world do not have access to essential medicines. There is something deeply wrong in a society that values the profits of a global corporation more highly than securing that access. At least 20 legitimate shipments of life-saving generic medicines have already been seized under a similar EU regulation. ACTA will formalize and extend that power. It’s not clear that it will do anything to prevent the circulation of fake medicines.

‘We are in danger of ending up with the worst of both worlds,’ says Michelle Childs of Médecins Sans Frontières. ‘Pushing IP rules, which are very effective at stopping access to life-saving drugs but are very bad at stopping or preventing fake drugs.’

ACTA’s censorship provisions are also extremely troubling. Like SOPA/PIPA they introduce virtual fiefdoms for copyright holders, encouraging a chilling effect on freedom of expression online.

‘The ACTA enforcement regime imposes a nineteenth century view of intellectual property (IP) that fails to acknowledge the changed relationship between individuals and information in the modern electronic age,’ say Article 19. ‘Consequently, the IP interests of corporations are disproportionately protected at the expense of individuals’ rights to freedom of expression and information.’

Perhaps the most controversial aspects of ACTA are its intentional avoidence of the usual norms of democratic accountability and introducing a parallel legislative process. As Adam Ma’anit noted in issue 435 of New Internationalist magazine: ‘ACTA is being negotiated in secret between supposedly democratic entities … while some cursory information has been released, there is still concern over the substance of the negotiations and the lack of public debate and scrutiny over some of its more odious details.’ The process has consistently excluded civil society groups, and even parliamentary discussion.

The EU Parliament development committee is scheduled to hold its first debate about the shadowy legislation today (24 January 2012). Their report, written by Jan Zahradil, a conservative, euro-sceptic from the Czech Republic, is a masterpiece of one-sidedness, failing to mention the extensive criticism that has been made of the legislation, or the frankly scandalous way in which legislators have circumvented the usual checks and balances of the democratic process. There is a much fuller analysis of the agreement over on La Quadrature Du Net’s wiki. We all need to stop ACTA before it’s too late.

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  1. #1 Sharon 24 Jan 12

    Restricting access to generic medicines will affect the developed and developing nations alike. While Canada, the US, and Europe are being distracted by the ongoing economic woes, they are overlooking the impact that ACTA (and TPP) will have on the availability of generic drugs....and the resulting significant impact on their national healthcare schemes.

    Canada in particular is going to be hit hard. Its government is being played like a fiddle by the US and lobby groups intent on protecting their own revenue streams, at the same time as Canada's healthcare system is failing because of increasing costs. When ACTA mechanisms are in force the Canadian government -- and people -- will reel from the impact when generic medicines are no longer available.

    Good luck!

  2. #2 ciderpunx 25 Jan 12


    I think that you are quite right in your analysis of what the likely effect will be in Canada. In fact I have misgivings about the whole way that we structure the pharmaceutical industry as a privatized monopoly that outsources much of its research to the public sector. Much of the justification given for patents is that they help to fund research whereas if you do a bit of adding up it turns out that a lot of the monopolistic advantage gained ends up being spent on marketing and lobbying efforts.

    The central point, of course, is that patent-infringing generics will have a positive impact on public health whereas counterfeit medicines will not. Treating them as the same thing is counterproductive.

  3. #3 QDN95 27 Jan 12

    Even Kader Arif, rapporteur for ACTA in the European Parliament quit his role as rapporteur citing the undemocratic nature of the process. Thanks for covering.

  4. #4 fjhkfhdjs 27 Jan 12

    FFII setting the EU propaganda on ACTA straight

  5. #5 Chris 17 Feb 12

    Charlie does a very poor job in this opinion piece. He makes outlandish claims without any elaboration. He relies upon conjecture, hearsay, and only once refers to, without including, the text of the agreement. For example, he writes, ’Lobbyists for big pharma have added their own clauses into the agreement that require customs officials to treat generic medicines as if they were counterfeit goods and seize them.’ What does he mean ’have added their own clauses?’ Were the clauses written by pharmaceutical companies verbatim? If so, there must be at least one example. Why were these, or at least one example, not shared? If these clauses were not written by pharmaceutical companies verbatim then those companies simply provided input. Of course, this is to be expected since companies that create new medicines are typically among the injured partuies when counterfeit (extremely dangerous) or illegal generics are sold. Howeverr, the wider claim that generics will be treated as counterfeits is not elaborated upon or we are not shown the language in the treaty that requires this to be the case. ACTA does not setup a police force, it merely calls for enforcement of existing IP protection, so Charlie is probably referring to an agreement whereby countries will seize generics that have not received marketing approval in a specific country. Selling a generic where generics have not been approved is often a violation of patent holders' rights and it is easy to confuse actions taken in this instance with treating generics as counterfeits. However, Charlie did not refer to the text of the agreement, which is not very long, or elaborate in any detail, so we cannot know what he is referring to.

  6. #6 ciderpunx 17 Feb 12


    I'm not sure that my claims are outlandish, they're largely based on the analysis of la quadrature de net, Oxfam and others linked in the text. You're right to pull me up on failing to link to the text .

    The final text of the proposed treaty was incorrectly labelled on the eu website when this article was published. You can now see the final text at:;opt=1&dis=20&lan=all&ty=&sta=1&en=20&page=1&year1=&year2=&sector=all&country=all&langId=en

    There is a much fuller discussion of the effects of ACTA on the availability of generics which explains the issues in more detail than I could in a blog post at:

    Whilst generic medicines may or may not infringe on a company's trademark or patents there is certainly no question of them being dangerous in any way; and access to generics is critical for many people in the world. I think the example I linked was pretty disturbing, especially given the need for HIV medication in majority world countries, for example.

    As for claiming that the pharma industry ’included clauses’ I'm afraid that was a bit of a rhetorical flourish. I think it unlikely that the clauses dealing with trademarks or patents would have ended up in an agreement about counterfeiting without some extensive lobbying, don't you?

    Of course I shan't be able to provide any evidence of this as all of the negotiations were conducted in secret.

  7. #7 Dominic 23 Feb 12

    I think it is easy to forget how poor countries benefit from the enforcement of intellectual property rights.

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About the author

Charlie Harvey a New Internationalist contributor

Charlie Harvey is the IT Manager here at New Internationalist. He's active in both the activist and tech communities and is a vocal advocate of Free Software. You can read more on his main Charlie Harvey site.

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