[Commons-Law] More on the hush-hush Anti-Counterfeiting Trade Agreement

Sat Jun 7 13:39:33 IST 2008

Dear All,
As pointed out in a recent EFF bulletin , there is "disturbingly little"
that is known today about the proposed Anti-Counterfeiting Trade Agreement
(ACTA):
"In October 2007 the United States, the European Community, Switzerland and
Japan simultaneously announced that they would negotiate a new intellectual
property enforcement treaty, the Anti-Counterfeiting Trade Agreement, or
ACTA. Australia, the Republic of Korea, New Zealand and Mexico have joined
the negotiations. Although the proposed treaty's title might suggest that
the agreement deals only with counterfeit physical goods (such as
medicines), what little information has been made available publicly by
negotiating governments about the content of the treaty makes it clear that
it will have a far broader scope, and in particular, will deal with tools
targeting "Internet distribution and information technology." To date,
disturbingly little information has been released about the actual content
of the agreement. However, despite that, it is clearly on a fast track;
treaty proponents want it tabled at the G8 summit in July, and completed by
the end of 2008."

A few links:
Proposed US ACTA multi-lateral intellectual property trade agreement (2007):
http://wikileaks.org/wiki/G-8_plurilateral_intellectual_property_trade_agreement_discussion_paper
http://wikileaks.org/leak/acta-proposal-2007.pdf

EFF's submission to USTR's call for comments:
http://www.eff.org/issues/acta/acta-submission-032108.pdf

Office of US Trade Representative's ACTA Fact Sheet
http://www.ustr.gov/assets/Document_Library/Reports_Publications/2007/asset_upload_file122_13414.pdf

Debunking The Faulty Premises Of The Pirate Bay-Criminalization Treaty
(TechDirt)
http://www.techdirt.com/articles/20080523/1203101212.shtml

US Plots "Pirate Bay Killer" Trade Agreement (/.)
http://yro.slashdot.org/yro/08/05/23/1251202.shtml?tid=153

>From the Wikileaks site:
Who is really behind ACTA? Follow the money:
Rep. Howard Berman (D-CA)
*Top four campaign contributions for 2006: *
Time Warner $21,000
News Corp $15,000
Sony Corp of America $14,000
Walt Disney Co $13,550
*Top two Industries: *
TV/Movies/Music $181,050
Lawyers/Law Firms $114,200

-----
http://www.ip-watch.org/weblog/index.php?p=1071

*30 May 2008*
Embattled ACTA Negotiations Next Week In Geneva; US Sees Signing This Year

By Monika Ermert for *Intellectual Property Watch*
Formal negotiations on an Anti-Counterfeiting Trade Agreement (ACTA) are
expected to commence next week in Geneva, according to a European Commission
official, even as a leaked United States trade office paper is drawing
criticism of the proposed pact.

The publication of a US Trade Representative's office discussion paper on
ACTA leaked last week on Wikileaks has spurred criticism of the new
agreement proposed by the US, Japan, European Union and Switzerland and
discussed behind closed doors so far.

ACTA is intended as "a new standard of intellectual property enforcement to
combat the high levels of trade in counterfeit and pirated goods worldwide,"
according to information made available by the Australian Department of
Foreign Affairs and Trade (DFAT), another partner in the negotiations.
Several nongovernmental organisations have warned against a trend of "forum
shopping" for global IP enforcement.

According to DFAT, which has been more open than other governments on the
issue, proposals made in the leaked paper date back to November
2007<http://www.dfat.gov.au/trade/acta/discussion-paper.html>,
with minor updates from 4 February. The idea of an international IP
enforcement agreement has been around for some time, writes DFAT, and was
discussed at the Global Congress on Combating Counterfeiting (GCCC) 2007 and
2008 and pushed by Japan at the 2005 Gleneagles Group of 8 Summit. A signing
of ACTA at the G8 in Japan in July is out of the question, said the EU
official. "This is a rumour," he said.

IP on the G8 Agenda, But ACTA Targeted for Year's End

*Update: IP-Watch has learned the meeting will take place on 3-4 June, at an
unspecified location. Further information will be added as it becomes
available.*

Given that no draft ACTA text beyond the discussion paper has been presented
signing in July would have been ambitious, say experts. But given that for
negotiating partner the European Union the finalised text needs not only a
"yes" of the Commission, but, said the Commission official, also of the
Council, it seems close to impossible, at least for some EU negotiating
partners.

"We have a mandate for negotiation" since 14 April, the Commission official
said. Yet for final approval the so-called Article 133 committee of the
European Council and the Council itself would have a final say.
"Negotiations will involve the Commission, EU member states and especially
the presidency," he said. The EU presidency will change hands from Slovenia
to France on 1 July.

A US trade official put negotiations within this year. "The United States
will strive to complete the agreement before the end of 2008," the official
said. Like the Commission official, the US official said he did not expect
signing at the G8, adding, "The G8 and ACTA are separate and distinct."

But intellectual property is again on the preliminary agenda of the G8
summit in Japan and if signing in 2008 is intended it might come up in some
of the bilateral talks between the ACTA negotiating partners who are in
attendance. G8 members include: Canada, France, Germany, Italy, Japan, UK,
US and Russia.

Cooperation, Enforcement, Legal Framework

The discussion paper published on
Wikileaks<http://wikileaks.org/wiki/G-8_plurilateral_intellectual_property_trade_agreement_discussion_paper>leaves
a lot of details unanswered. It includes international cooperation
measures, enforcement measures and legal framework as the main provision
categories for ACTA.

International cooperation among enforcement agencies, including joint
actions, exchange of information between national authorities and capacity
building and technical assistance in improving enforcement are the major
points for the "cooperation" category.

Mentioned enforcement practices to be harmonised include: formal or informal
public/private advisory groups; specialised IP expertise in law enforcement
agencies; the sharing of information on enforcement actions with
international colleagues and the public; and the establishment of
coordination bodies to facilitate joint actions are mentioned.

For the legal framework, criminal and civil law enforcement is envisaged, as
are far-reaching border measures like ex-officio authority for customs
authorities to suspend import, export and trans-shipment of suspected
IPR-infringing goods, possibilities for rights-holders to initiate border
blocks for "suspicious" goods, and "the authority to impose deterrent
penalties."

Special provisions were put forward in the discussion paper for internet
distribution and information technology. The discussion paper recommends a
legal regime that includes safeguards for ISPs from liability on the one
hand, and cooperation of ISPs with right holders on the other hand. Data
about the identity of alleged infringers, for example, should be handed over
on "effective notification" of "a claimed infringement." Also, remedies
against circumvention of technological protection measures used by copyright
owners and the trafficking of such circumvention devices are recommended.

Finally, oversight to resolve implementation issues by a committee of ACTA
parties is proposed.

Negotiating partners are tight-lipped on the details of the provisions. On
the question of what kind of oversight body might be finally chosen, USTR
answered: "We are still studying appropriate mechanisms for ongoing
cooperation internally and discussing the issue with the other ACTA
participants." It is unclear from the available information if there is a
more detailed draft proposal. According to USTR, "the text for the agreement
is being developed."

Criticism from NGOs

Canadian law expert David Fewer, staff counsel at the University of Ottawa's
Canadian Internet Policy and Public Interest Clinic, told the Ottawa Citizen
that the discussion paper was very close to a potential Christmas wish-list
by Hollywood companies.

Knowledge Ecology International (KEI), in an earlier statement filed to
USTR, warned against a lack in differentiation and clearness of core terms,
like counterfeiting, infringement or piracy. "Is Microsoft a "pirate" for
insisting on the right to continue to infringe the z4 patents in order to
use an infringing DRM technology to protect Microsoft software itself from
infringement by unauthorised uses?" KEI asked in its statement.

"Is the International Trade Commission endorsing piracy by refusing to
prevent the importation of all mobile phones that use infringing
semiconductor chips?" or "Is Abbott Laboratories a "pirate" for seeking a
compulsory license for its infringing use of patents on a Hepatitis C virus
genotyping test kit?"

Users of social networking tools MySpace, Facebook or Youtube might be
searched at borders because of extensive evidence of unauthorised use of
content on these platforms, as could USTR officials who had copies and
shared copyrighted articles about counterfeit products, KEI asserted.

IP Justice heavily criticised the attempt to keep developing countries out
of the negotiations. "After the multilateral treaty's scope and priorities
are negotiated by the few countries invited to participate in the early
discussions, ACTA's text will be 'locked' and other countries who are later
'invited' to sign on to the pact will not be able to re-negotiate its
one-sided terms," IP Justice stated. Signing on to ACTA is said to be
"voluntary" but seen as difficult to refuse after the negotiation is
completed.

Petra Buhr of IP Justice suggested the World Intellectual Property
Organisation or the World Trade Organisation as international fora for
negotiations on IP issues. But the US trade official said, "We feel that the
approach of a free-standing agreement is an appropriate way to pursue this
project among interested countries. We support the important work of WTO and
WIPO related to IPR enforcement."

Lack of Transparency

Despite the lack of legal details for the various ACTA provisions, critics,
IP law researchers and some politicians concur that there is a lack of
transparency in the process.

"In my opinion it is not acceptable that international agreements are
negotiated behind closed doors while Parliament is working on legislation on
the very same issue in a co-decision procedure," said Eva Lichtenberger,
Green Party member of the European Parliament. "It is contradictory to
European rules to prejudice EU legislation in that way," she said, "and it
does not serve our democratic process." Lichtenberger just won a decision by
the president of the EU parliament with regard to a provision to exclude
parallel imports from criminal sanctions in a directive on "Criminal
measures aimed at ensuring the enforcement of intellectual property rights."

The EU Parliament has not been informed about the negotiations so far and
although the new Lisbon Treaty strengthens Parliament's role, under the
status quo they might in the end only be "consulted" on a finalised ACTA.

Questions in Europe

Some questions are arising on the negotiation of ACTA in Europe. The EU
enforcement directive called IPRED 2 is a follow up to civil rights measures
against IPR infringement and piracy in the already passed IP Enforcement
Directive (IPRED). Taken together, these EU directives cover very much the
same ground on IPR enforcement as ACTA will.

IP law experts in Europe say they do not know how ACTA would reconcile
European data protection standards with perhaps tougher provision for
searches in ACTA.

"The EU Commission as a general rule strives towards keeping bilateral or
plurilateral treaty negotiations in line with norms existing on the EU
level," the German Ministry of Justice said in response to questions from
Intellectual Property Watch. "Standards for criminal law sanctions are not
in place at the EU level," it said.

As IPRED 2 was delayed by questions of institutional competency and by
changes in competency, the Lisbon Treaty of the Union still did not fix the
content of Europe's criminal law sanctions regulation against IP
infringement and piracy. "The question of possible overlaps therefore is not
applicable here," it said.

The German government supports the ACTA negotiations, the ministry said. As
Germany already has high protection standards for IP, from the German point
of view, timing is not as critical as the elaboration of sound regulations
for ACTA.

*Monika Ermert may be reached at info at ip-watch.ch.*
------------------------------
Filed under:

   - English <http://www.ip-watch.org/weblog/index.php?cat=1>
   - Access to Knowledge <http://www.ip-watch.org/weblog/index.php?cat=44>
   - Education <http://www.ip-watch.org/weblog/index.php?cat=45>
   - Human Rights <http://www.ip-watch.org/weblog/index.php?cat=46>
   - US Policy <http://www.ip-watch.org/weblog/index.php?cat=53>
   - European Policy <http://www.ip-watch.org/weblog/index.php?cat=54>
   - News <http://www.ip-watch.org/weblog/index.php?cat=56>
   - Enforcement <http://www.ip-watch.org/weblog/index.php?cat=59>

*This work is licensed under a Creative Commons
License<http://creativecommons.org/licenses/by-nc-sa/2.5/>.
All of the news articles and features on Intellectual Property Watch are
also subject to a Creative Commons
License<http://creativecommons.org/licenses/by-nc-sa/2.5/>which makes
them available for widescale, free, non-commercial reproduction
and translation.*
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