Last week Poland witnessed several street demonstrations throughout the country, together with the hacking of numerous government websites in protest against the Polish government’s decision to sign the Anti-Counterfeiting Trade Agreement (ACTA) treaty in Tokyo, Japan. Despite the protests, Poland’s Ambassador to Japan signed the treaty on January 26 on behalf of Poland. Most other EU member countries also signed the treaty.

Supporters of the agreement argue that its adoption will create an international standard for intellectual property rights, thereby ensuring a minimum set of protections to be enforced by all signatory countries. Opponents argue, however, that the treaty will have a chilling effect on freedom of speech and expression.

What’s the fuss?

The treaty seeks to combat the cross-border trade in counterfeit goods (think fake Gucci bags) as well as online piracy. Supporters and opponents alike generally agree that governments should do more to protect intellectual property rights, and specifically the cross-border trade in counterfeit goods. Where they disagree, however, is on how to protect intellectual property rights on the internet. ACTA seeks to broaden the scope of activities on the internet subject to criminal prosecution as opposed to civil prosecution.

Opponents argue that ACTA will subject internet service providers to criminal prosecution for their customers’ online activity. Moreover, “non-commercial” file sharing will now potentially be subject to criminal prosecution. The treaty, opponents fear, is not clearly written, leaving many key provisions subject to interpretation by individual governments.

Private vs commercial

A key issue open to interpretation regards just what constitutes “commercial” use versus “private” use. ACTA criminalizes the illegal “commercial” downloading of copyrighted material, but fails to define what is meant by “commercial.” At issue is where to draw the line between commercial and private use. Both are illegal – however, until now the illegal downloading of material from the internet for personal use has been subject to the imposition of a monetary fine, not imprisonment.

ACTA leaves it to individual countries to decide where to draw line, which opponents argue will lead to a patchwork of enforcement actions from country to country, thereby undermining the treaty’s stated goal to bring uniformity to the global protection of copyrights.

Is it legal?

As written, ACTA is legal in Poland. To begin with, Poland’s constitution provides that any international treaty entered into by the Polish government shall trump local law. In the lead-up to signing the treaty, Poland’s Minister of Culture and National Heritage declared that ACTA did not conflict with any Polish regulations currently in effect, nor would it require the amendment of any existing laws.

Enforcement of ACTA, however, is another story. Strict enforcement of every provision of the Treaty could run afoul of both Poland’s and the EU’s personal data protection laws and directives. Specifically, the need to collect, store and potentially disclose personal data of an individual internet user upon demand of the owner of an infringed copyright (as opposed to the current requirement to first obtain a court order to seek such personal data) would appear to violate Poland’s personal data protection law and the EU’s Directive on Electronic Commerce. Moreover, toward the end of 2011, the Court of European Justice ruled in Scarlet v. Sabam that internet service providers are not obligated to filter electronic communications or to block such content in order to protect intellectual property rights. Nor can the service provider be held accountable for the illegal activity of individual users.

Poland will need to be very careful in how it interprets many parts of ACTA and how it enforces the anti-piracy provisions of the treaty if it wishes to avoid being brought before the Court in Strasbourg.

Paul Fogo is a senior attorney with Miller, Canfield, W. Babicki, A. Chelchowski & Partners. fogo@pl.millercanfield.com