ANTI-COUNTERFEITING TRADE AGREEMENT (ACTA): THE ATOMIC STEALTH IP TORPEDO?

Posted: January 25, 2012 in by John Dilligent
Tags: , ,

Swiss anti-ACTA activists protest the treaty negotiations held in Luzern, Switzerland

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“ACTA contains new potential obligations for Internet intermediaries, requiring them to police the Internet and their users, which in turn poses significant concerns for citizens’ privacy, freedom of expression, and fair use rights.” — Eva Galperin of the Electronic Frontier Foundation

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The Purposes of ACTA

ACTA is a plurilateral trade agreement that proposes international standards for the enforcement of IP law related to the counterfeiting of trademarked goods and the infringement of copyright. Proponents of ACTA claim that increased harmonization of enforcement mechanisms is necessary to prevent the undermining of trade and competitiveness, which they allege will have negative repercussions on economic growth and jobs.

It has further been argued, by entities including the European Commission, that, as an enforcement regime, ACTA does not seek to augment IP rights themselves, but strengthen the enforcement regime for rights that already exist.

Negotiations on ACTA began in 2006 with Japan and the US; followed by Canada, the EU and Switzerland in 2008; and joined more recently by Australia, Mexico, Morocco, New Zealand, South Korea, Singapore, Jordan and the United Arab Emirates. The final text was reached in November 2010.

The text of ACTA was adopted on December 3, 2010 and has now been submitted to the negotiating parties for ratification. To date, the United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore and South Korea have ratified ACTA.

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Transparency in the Drafting Process

The drafting process for ACTA was conducted in secret, and the ACTA committee, tasked with leading the process, has been highly selective with the stakeholders it has chosen to consult with. The Trade Representative for the United States drafted a confidentiality agreement that was signed by all parties and prohibited negotiating states from disclosing information on the negotiations.

There has been no engagement with civil society organizations during the drafting process. Indeed, requests from civil society organizations for information on the ACTA negotiations have been denied in both US and EU freedom of information requests. Even the European Commission has refused to provide drafts of ACTA to the European Parliament

Corporate stakeholders with significant commercial interests in a strengthened international IP enforcement regime were given access to ACTA negotiations. These parties are reported to include Google, IBM, eBay, Dell, Intel, Business Software Alliance, News Corporation, Sony Pictures, Time Warner, the Motion Picture Association of America, and Verizon.

These corporate entities have been given access to information that has not been disclosed to other concerned stakeholders, and have had numerous opportunities to contribute the perspective of the IP industry into negotiations and thereby influence their outcome.

Moreover, this participation has not been subject to public scrutiny, and demonstrates a concerning asymmetry in the ACTA committee’s already opaque policy on stakeholder participation.

The drafting process has also bypassed the established multilateral fora for intellectual trade agreements, including the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). These organizations have established transparency policies that would have prohibited the secret nature of discussions to date.

So far, the negotiations have been conducted only between states that are party to the agreement – to the exclusion of emerging economies such as Brazil, Russia, India and China. Political concerns have been expressed that the ACTA enforcement mechanism may be “exported” to these countries and others through bilateral trade agreements in the future.

 This is potentially problematic from a freedom of expression perspective, particularly if the adoption of more draconian “optional” enforcement provisions is compelled through such negotiations. Brazil reportedly even considered enacting an anti-ACTA statute to prevent the exportation of ACTA enforcement principles through trade agreements.

As a matter of international law, there is disagreement within the United States and between the United States and other ACTA parties whether the agreement is legally enforceable and subject to the Vienna Convention on the Law of Treaties 1969 (VCLT). Article 32 of VCLT requires that where the language of a treaty provision is ambiguous, obscure or manifestly absurd or unreasonable, one should refer to the preparatory work (travaux préparatoires) of the treaty to aid the interpretation of it.

A number of provisions in ACTA are ambiguous, and it would therefore be necessary as a matter of treaty interpretation to have access to the documents that have, to date, been declined following freedom of information requests. Keeping the travaux préparatoires secret is counterproductive to the legal certainty of the document, and may even undermine its credibility and enforceability in the future.

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Read, download, or print out the 25-page official finalized version of the treaty, straight from the Office of the United States Trade Representative, right here at The Dirty Lowdown, by simply clicking on the link below. A PDF reader such as Adobe Reader is required:

Anti-Counterfeiting Trade Agreement

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