IP Laws and the Games Industry: What Next?

The third difference is that ACTA is trying to do something different to SOPA and PIPA: it is trying to harmonise how the major Western countries approach counterfeit and pirated products, not to impose new standards on them. For example, this is what the UK's Intellectual Property Office says about ACTA:

"ACTA is a plurilateral treaty that seeks to improve the global enforcement of intellectual property rights through the creation of common enforcement standards and practices and more effective international cooperation... ACTA will not create new intellectual property rights, laws, or criminal offences in the UK and EU but will provide an international framework that strengthens international enforcement in areas of intellectual property."

And, by and large, that's what ACTA will do. It is careful to be respectful of the existing laws of signatory countries and tries to ensure that they all have certain minimum standards in place, which, in practice, most if not all the Western countries already comply with.

It also recognises the importance of the balance between protecting IP rights while not restricting freedom of expression or speech. For example, its section regarding IP protection online says "...procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each Party's law, preserves fundamental principles such as freedom of expression, fair process, and privacy."

Sounds fair enough to me.

Some commentators have pointed out that what this actually means is that the Western economies want to toe the same line on these issues in a bid to encourage emerging world economies, such as China and India, to do the same. Or put it another way: ACTA isn't about piracy in the USA or the EU; it's about piracy everywhere else. Make of that what you will, depending on your geopolitical outlook.

But that doesn't mean ACTA is squeaky clean. It does have some provisions that are potentially concerning, in particular its encouragement of minimum/statutory damages for copyright infringement, which are standard in the USA but foreign to the UK - it's how the USA gets to its impressive copyright damages awards. It also has a SOPA-lite strategy of permitting action against a support network to a website, although it must be done under judicial scrutiny under ACTA.

As any lawyer will tell you, half the struggle in a legal matter is getting the right words down, but the other half of the struggle is getting both sides to respect those words. ACTA looks like a relatively reasonable document at the moment, but it always comes down to what the signatories actually do rather than what they say.

What harms ACTA the most in that respect is how it was negotiated until recently. Critics have argued that ACTA started as a much more draconian set of proposals and that it was negotiated in extreme secrecy. In the EU, for example, successive requests for information by interested parties were rebuffed. A few recently high-profile kicks against ACTA haven't helped dispel this concern either, such as the surprise resignation of the European Parliament's rapporteur on ACTA, who described the process as a "masquerade".

So, while ACTA is clearly not even in the same ballpark as SOPA or PIPA, there are a few legitimate questions about it.

Where does ACTA stand legally?

It's a bit of a mixed bag. Member countries have to both sign and 'ratify' ACTA, meaning they have to pass a domestic law to implement it. But that ratification process is suffering some bumps along the way - above all in the EU.

For ACTA to become law in the EU, it would need to be approved by the EU itself (which has now happened) and ratified by every EU Member State. Normally, this triggers either reasonably swift national implementation for uncontroversial laws, or a period of navel-gazing for controversial laws while each Member State tries to find out if everyone else is going to ratify the law.

For ACTA, expect navel-gazing aplenty since Poland has already announced it needs to go through more "consultations." This may or may not have been influenced by the news of thousands protesting against ACTA in Polish streets. In the meantime, ACTA is in limbo in the EU, and probably elsewhere too.

So there we have it: three laws all in their own way dedicated to tackling IP infringement and piracy, all brought low to differing degrees. What can we take away from all this? First is that, like it or not, there will be further attempts to tackle IP infringement and piracy by legal means. That might come via a resurrected SOPA, another new law, or possibly using just existing laws. The UK's Digital Economy Act 2010, for example has already given the UK government the power to enact a SOPA-lite mechanism; it just hasn't activated it yet.

The key for the games industry is to make sure it understands early enough exactly what the proposals would actually do - rather than just trusting the hype - so that it can respond accordingly. We also need to be involved in the discussion about whether there is a factual requirement, and legal justification, for any change in the law.

On that front, opinions differ as to what harm piracy actually does to creative industries, and whether legal solutions can be an appropriate, cost-effective way of tackling it. Or whether, for example, piracy is just a service issue that will ebb away as we get better at delivering content to consumers.

The games industry has an important part to play in that debate - but it needs to make its voice heard.

Jas Purewal is a games lawyer and writer of Gamer/Law.