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ACTA would be good, says lawyer

THE ANTI-Counterfeiting Trade Agreement, more commonly known as ACTA, has been causing uproar not only in the USA, Germany and other countries, but also in Slovakia. In response to negative reactions to ACTA in Slovakia, outgoing Economy Minister Juraj Miškov has interrupted the adoption procedure for the treaty in Slovakia, launched a wide-ranging debate about it, and left the final decision about what to do with it to the next government, which will assume power following the March 10 elections.

THE ANTI-Counterfeiting Trade Agreement, more commonly known as ACTA, has been causing uproar not only in the USA, Germany and other countries, but also in Slovakia. In response to negative reactions to ACTA in Slovakia, outgoing Economy Minister Juraj Miškov has interrupted the adoption procedure for the treaty in Slovakia, launched a wide-ranging debate about it, and left the final decision about what to do with it to the next government, which will assume power following the March 10 elections.

But while people have been rallying against ACTA across Slovakia – or have launched cyber-attacks on the websites of state institutions in protest – lawyer Radovan Pala, partner of the e|n|w|c Natlacen Walderdorff Cancola law firm, which specialises in commercial law, including international aspects of intellectual property rights, pointed out that ACTA does not address ordinary people but large-scale infringers who try to profit from massive infringement of copyright and other intellectual property rights. He said he is convinced that Slovakia can benefit from adoption of ACTA.

The author spoke with Pala about copyright and copyright protection, ACTA, and its potential impact on Slovakia.

The Slovak Spectator (TSS): Is downloading music or films from the internet legal today in Slovakia?
Radovan Pala (RP):
An obvious answer to this question is a quote from the [Slovak] Copyright Act: "A natural person may make a copy of the published work for himself/herself without the copyright holder’s permission, provided the copy is made for non-commercial purposes." Thus, if the copyright holder has given consent for the publication of the work in Slovakia, anyone in Slovakia may make a copy of it for his/her own non-commercial use completely legally.

TSS: Does downloading files from various online storage repositories fall within the scope of this exception as well?
RP:
The act does not stipulate the manner of publication of the work; the legal nature of the source is not important. The act deals only with the first publication of the work in Slovakia; so if a film has been officially released in cinemas, it is legal, under Slovak law, to download that film for private use from the internet.

TSS: How will ACTA change the situation?
RP:
Nothing will change, because ACTA does not exclude the possibility of retaining national statutory exceptions.

TSS: If the portal Megaupload.com were operated in Slovakia, could it be prosecuted under the current law?
RP:
Yes it could because the persons operating this portal were motivating people to upload illegal content to their servers, they were aware of such illegal content, they were not deleting this content despite takedown notices, and they even manipulated the content themselves.

TSS: The Czech branch of the law firm Rowan Legal asserts that already the current Czech copyright law enables customs officials to inspect content stored on electronic devices. What is the situation here?
RP:
The situation here is essentially the same. For example, in the case of a flight from a non-EU country like Croatia or Egypt to Slovakia, if certain statutory conditions are met, then such an inspection is legally allowed and possible. In this regard, therefore, ACTA will not, in principle, bring us any changes.

TSS: Why are such searches not conducted today?
RP:
I will answer in a different way. Today, under the [Slovak] Criminal Code, even the infringers of intellectual property rights who have caused the copyright holders and publishers no or only minimal damage, as is mostly the case when downloading music through torrents, may be criminally prosecuted. Already today we have legal rules which could, in my opinion, be absurdly hard in relation to consumers; however, these rules are almost never enforced in practice. The ACTA treaty does not aim to punish consumers, but to combat large-scale trade in counterfeits. ACTA expressly stipulates that it combats counterfeiting conducted on a commercial basis.

TSS: Is it possible that ACTA will change and the sanctions be extended even to consumers of content?
RP:
The addressees of these measures are not ordinary people, but large-scale infringers who try to profit from massive infringement of copyright and other intellectual property rights. I do not think that anything will be changed by ACTA with respect to this approach. The aim of this trade agreement is to strengthen competence in detecting and preventing massive commercially motivated copyright infringement.

TSS: The most frequent argument against adoption of ACTA is its secret origin and the fact that it is written in very general and ambiguous language.
RP:
I agree with the objection to the way in which the negotiations were conducted; however, regarding the wording of the agreement itself, it is important to realise that among the participating parties are countries such as the United States, the European Union, Japan, Korea and Mexico. It is a mixture of various legal systems; hence, ACTA could not be more specific.

TSS: What will happen if some EU members do not ratify ACTA even if it is approved by the European Parliament?
RP:
Such a procedure is not possible. If ACTA is not ratified by all members, it cannot become binding in the EU.

TSS: What, in your opinion, would the adoption of ACTA bring to Slovakia?
RP:
Discussions might be expected; however, paradoxically, I would particularly welcome a discussion about liberalising the [Slovak] Criminal Code, since the crime of copyright infringement is now excessively strictly defined; such strict criminal sanctions are required neither by ACTA nor by any other international treaty. Certain technicalities of the [Slovak] Code of Civil Procedure should be changed, which should help to expedite certain types of civil proceedings which we already have. However, ACTA will not bring us anything new. In this respect, more activity might be expected from Brussels.

TSS: Do you think that we will lose if we adopt the ACTA?
RP:
No matter how it may sound, I am deeply convinced that Slovakia can benefit from adoption of ACTA. I do not see any way that Slovakia could cause harm to its citizens by the adoption of ACTA; quite the contrary, I think our entrepreneurs could benefit from its adoption.

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