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U.S. Caves on Anti-Circumvention Rules in ACTA

U.S. Caves on Anti-Circumvention Rules in ACTA
One of the biggest stories coming out of the latest ACTA leak is how the U.S. has gradually caved on its digital lock demands.  While the U.S. initially proposed an aggressive draft chapter it hoped would export U.S. law to all ACTA partners, it has now caved on many key issues with the European language carrying the day.  The implications for anti-circumvention rules are significant, since the language is closer (though not identical) to the more flexible WIPO approach and confirms that Canada's Bill C-32 actually goes beyond would be needed to comply with ACTA, were it to conclude in its current form.

One of the biggest stories coming out of the latest ACTA leak is how the U.S. has gradually caved on its digital lock demands. While the U.S. initially proposed an aggressive draft chapter it hoped would export U.S. law to all ACTA partners, it has now caved on many key issues with the European language carrying the day. The implications for anti-circumvention rules are significant, since the language is closer (though not identical) to the more flexible WIPO approach and confirms that Canada's Bill C-32 actually goes beyond would be needed to comply with ACTA, were it to conclude in its current form.

Before examining the changes, it should be noted that there remain doubts about whether this chapter even belongs in ACTA. Both Canada and Mexico have reserved the right to revisit all elements of this chapter at a later date, suggesting that both countries have concerns about the digital enforcement chapter. Moreover, there are still disputes over the scope of the Internet chapter, with the U.S., Australia, NZ, Canada, Singapore and Mexico seeking to limit the chapter to trademark and copyright, while Japan, the EU, and Switzerland want to extend it to all IP rights. Without resolving this issue, there is no digital enforcement in ACTA.

The Anti-Circumention Provision

The U.S. drafted the Internet chapter with language that would extend the WIPO Internet treaties by interpreting the anti-circumvention rules to include mandatory criminal and civil enforcement penalties as well as broad coverage of devices. That battle has now been largely lost - there is no reference to criminal or civil penalties and more narrow coverage of devices. The core digital lock provision - supported by the EU, Japan, Mexico, Singapore, Morocco, and Australia - sticks very closely to simply repeating the WIPO provision itself. For example, the WPPT provision states:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law

The current language in ACTA is as follows:

Each Party shall provide adequate legal protection and effective legal remedies [US: at least] against the circumvention of effective technological measures that [US: are used by, or at the direction of, ] authors, and [NZ: performers] performers and producers of phonograms [US: use] use in connection with the exercise of their rights that restrict acts in respect of their works, [NZ: performances] performances, and phonograms, which are not authorized by the authors, the [NZ: performers] performers or the producers of phonograms concerned or permitted by law. [US: In order to provide such adequate legal protection and effective legal remedies, each Party shall provide protection at least against:] Adequate legal protection shall be provided, in appropriate cases, at least against:

The square brackets make it clear the U.S. is still pushing to extend the provision, but this EU-inspired language is much closer to the flexible WIPO approach than what is found in the U.S. DMCA.

The ACTA provision then continues by specifying what constitutes adequate legal protection and effective legal remedies. It identifies two issues - unauthorized circumvention (not including copy controls) and the manufacture, importation, and distribution of circumvention devices. This latter provision extends WIPO by clearly incorporating devices, but not nearly as far as the current DMCA language.

From a Canadian perspective, it should be noted that Bill C-32 goes much further than ACTA would currently require for its anti-circumvention rules. The digital lock prohibitions could be amended to cover fair dealing circumvention since there is a provision that permit exceptions to legal protection for digital locks. Moreover, the prohibition on circumvention devices in C-32 goes well beyond what is required in ACTA. In other words, the bill could be amended from its present form and still be ACTA compliant.

The chapter also includes an ISP liability provision, though the three strikes language that once appeared in the drafts are now gone. There is still no agreement on the U.S. notice and takedown approach. Switzerland wants the entire ISP provision permissive rather than as a requirement. Japan is opposed to a takedown system, instead favouring more general language requiring ISPs to "take appropriate measures." Moreover, the chapter now includes greater certainty that there is no ISP monitoring requirement. While an earlier draft stated

"The Parties shall not impose a general monitoring requirement on providers when acting in accordance with this paragraph 3"

The current draft now says:

"No Party's legislation may condition the limitations in subparagraph (a) on an obligation that the online service provider monitors its services or [CH: in any other way] actively or affirmatively seeks facts indicating that infringing activity is occurring."

One of the biggest stories coming out of the latest ACTA leak is how the U.S. has gradually caved on its digital lock demands.  While the U.S. initially proposed an aggressive draft chapter it hoped would export U.S. law to all ACTA partners, it has now caved on many key issues with the European language carrying the day.  The implications for anti-circumvention rules are significant, since the language is closer (though not identical) to the more flexible WIPO approach and confirms that Canada's Bill C-32 actually goes beyond would be needed to comply with ACTA, were it to conclude in its current form.

Before examining the changes, it should be noted that there remain doubts about whether this chapter even belongs in ACTA.  Both Canada and Mexico have reserved the right to revisit all elements of this chapter at a later date, suggesting that both countries have concerns about the digital enforcement chapter.  Moreover, there are still disputes over the scope of the Internet chapter, with the U.S., Australia, NZ, Canada, Singapore and Mexico seeking to limit the chapter to trademark and copyright, while Japan, the EU, and Switzerland want to extend it to all IP rights.  Without resolving this issue, there is no digital enforcement in ACTA.

The Anti-Circumention Provision

The U.S. drafted the Internet chapter with language that would extend the WIPO Internet treaties by interpreting the anti-circumvention rules to include mandatory criminal and civil enforcement penalties as well as broad coverage of devices.  That battle has now been largely lost - there is no reference to criminal or civil penalties and more narrow coverage of devices.  The core digital lock provision - supported by the EU, Japan, Mexico, Singapore, Morocco, and Australia - sticks very closely to simply repeating the WIPO provision itself.  For example, the WPPT provision states:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law

The current language in ACTA is as follows:

Each Party shall provide adequate legal protection and effective legal remedies [US: at least] against the circumvention of effective technological measures that [US: are used by, or at the direction of, ] authors, and [NZ: performers] performers and producers of phonograms [US: use] use in connection with the exercise of their rights that restrict acts in respect of their works, [NZ: performances] performances, and phonograms, which are not authorized by the authors, the [NZ: performers] performers or the producers of phonograms concerned or permitted by law. [US: In order to provide such adequate legal protection and effective legal remedies, each Party shall provide protection at least against:] Adequate legal protection shall be provided, in appropriate cases, at least against:

The square brackets make it clear the U.S. is still pushing to extend the provision, but this EU-inspired language is much closer to the flexible WIPO approach than what is found in the U.S. DMCA.

The ACTA provision then continues by specifying what constitutes adequate legal protection and effective legal remedies.  It identifies two issues - unauthorized circumvention (not including copy controls) and the manufacture, importation, and distribution of circumvention devices.  This latter provision extends WIPO by clearly incorporating devices, but not nearly as far as the current DMCA language.  

From a Canadian perspective, it should be noted that Bill C-32 goes much further than ACTA would currently require for its anti-circumvention rules.  The digital lock prohibitions could be amended to cover fair dealing circumvention since there is a provision that permit exceptions to legal protection for digital locks.  Moreover, the prohibition on circumvention devices in C-32 goes well beyond what is required in ACTA.  In other words, the bill could be amended from its present form and still be ACTA compliant.

The chapter also includes an ISP liability provision, though the three strikes language that once appeared in the drafts are now gone.  There is still no agreement on the U.S. notice and takedown approach.  Switzerland wants the entire ISP provision permissive rather than as a requirement.  Japan is opposed to a takedown system, instead favouring more general language requiring ISPs to "take appropriate measures."  Moreover, the chapter now includes greater certainty that there is no ISP monitoring requirement.  While an earlier draft stated

"The Parties shall not impose a general monitoring requirement on providers when acting in accordance with this paragraph 3"

The current draft now says:

"No Party's legislation may condition the limitations in subparagraph (a) on an obligation that the online service provider monitors its services or [CH: in any other way] actively or affirmatively seeks facts indicating that infringing activity is occurring."

Content Country: 
United States

Canada at the ACTA Negotiations: Canadian Proposals in the Current Draft

Canada at the ACTA Negotiations: Canadian Proposals in the Current Draft
The leaked version of the latest ACTA draft helpfully includes country positions, information that was scrubbed from the official release last April.  As I noted yesterday, much of the debate boils down to U.S. and European proposals with the remaining ACTA countries picking sides.  Jonathan O'Hara, one of my research students this summer, has helped compile a list of the Canadian positions where negotiators have failed to reach consensus.  It is notable that most Canadian positions seek to limit the scope of ACTA or incorporate some balancing provisions.

The leaked version of the latest ACTA draft helpfully includes country positions, information that was scrubbed from the official release last April. As I noted yesterday, much of the debate boils down to U.S. and European proposals with the remaining ACTA countries picking sides. Jonathan O'Hara, one of my research students this summer, has helped compile a list of the Canadian positions where negotiators have failed to reach consensus. It is notable that most Canadian positions seek to limit the scope of ACTA or incorporate some balancing provisions.

Chapter One: Initial Provisions and Definitions

Section A: Initial Provisions

Article 1.2: Nature and scope of obligations

In the phrase “more extensive protection and enforcement” Canadian is proposing to delete “protection”, which would limit the scope of ACTA to enforcement, rather than to protection of IP generally.

Article 1.3: Relation to standards concerning availability and scope of intellectual property rights

Canada is proposing to add a paragraph “No Party shall be obliged to apply this section to any goods that do not infringe an intellectual property right held within the territory of that Party.”

Canada seems to be attempting to limit the applicability of ACTA by requiring that IPRs be recognized in the territory of a member, for a member to have obligations to enforce IPRs.

Article 1.X: (General principles)

Canada is proposing to add an article that outlines principles of IP enforcement, such as technology dissemination and transfer, a manner conducive to social and economic welfare, measures necessary to protect health and nutrition, etc.

Section B: General Definitions

Canada has reserved its position on all the definitions pending discussion.

Chapter Two: Legal Framework for Enforcement of Intellectual Property Rights

General Obligations

Article 2.X: General obligations with respect to enforcement

Canada is proposing: “(3) In respect of civil remedies and criminal penalties for enforcement of intellectual property rights, each Party shall take into account, as appropriate the need for proportionality between the seriousness of the infringement, the interests of third parties and the applicable remedies or penalties.”

The major difference between this and another option is the requirement to take the interests of third parties into account, and that specificness of the wording around proportionality.

Canada is proposing in paragraph (5) that the agreement shall apply ONLY to trademark counterfeiting and copyright piracy.

Section 1: Civil Enforcement

Article 2.1: Availability of Civil Procedures

Canada is proposing that civil procedures only be available for copyright, related rights and trademark rights.

Article 2.X: Injunctions

Again Canada is limiting the availability of injunctions to copyright, related rights or trademarks. Canada is suggesting that the power of judicial authorities be “subject to any statutory limitations under its domestic law”. This suggesting has been explicitly opposed by the US, Japan, EU, Switzerland, Korea and Mexico.

Article 2.3: Other Remedies

In two paragraphs of this article Canada is proposing remedies regarding destruction of goods or implements to create the goods, be limited to good which are found to be related to piracy or counterfeiting.

Canada is also proposing that judicial authorities have the power to order the destruction to occur at the infringer's expense.

Article 2.5: Provisional Measures

Canada is proposing the that provision measures only be available where there is an imminent infringement of copyright, related rights or trademark rights.

Canada is proposing that for provisional measures, authorities can require sufficient evidence to ensure that infringement is imminent before provision measures are taken.

Section 2: Border Measures

Article 2.X: Scope of border measures

Canada is proposing that provisions for border measures be applied to trademark counterfeiting and copyright piracy. While Canada has not explicitly used the work “only” to strictly limit the application of border measures, but the US, Singapore and Japan have suggested changes to the wording to make border measures more broadly available, including “applies to at least trademark counterfeiting and copyright piracy”.

Article 2.X: De Minimis Provision

Canada is proposing to make the wording of the de minimis provision the same as the TRIPS equivalent, and include goods “sent in small consignments”.

Article 2.6: Application by Right Holder

Canada is proposing that Parties shall provide procedures for import, but not be obligated to provide measures to exported goods. In a footnote to this, Canada is also wanting to clarify that there is no obligation to apply the procedures to grey market goods. Canada is is also proposing that accepted applications for border measures be effective for a least one year.

Article 2.7: Ex-Officio Action

Canada is proposing that Parties give their customs authorities the power to suspend goods suspected of being pirated copyright or counterfeit trademarked while they are exported from the country or in transit through the country. This differs from the position of the US who propose that Parties shall give their customs authorities the power to seize on import/export/transit.

Article 2.X (Information sharing cooperation in lieu of suspension of goods)

Canada is proposing that any information sharing between an exporting or transit country and the destination country is limited by and must be consistent with any bilateral information sharing agreements.

Article 2.9: Security or equivalent assurance

Canada proposes to modifying the wording of this article to apply to copyright, related rights or trademark rights, which is consistent with Canada's position that ACTA clearly apply only to those IPRs, rather than all IPRs.

Section 3: Criminal Enforcement

Article 2.14: Criminal Offenses

Paragraph 1:

Canada is proposing to clarify that criminal offenses apply to acts of piracy (rather than acts of infringement as the US is proposing). In either case, the piracy or infringement still must be commercial in nature. This seems like an attempt by Canada to make clear that criminal enforcement applies to a specific subset of infringement activities, rather than using infringement loosely in different contexts.

Paragraph 5:

Canada is proposing to specifically include that a theatre manager can be guilty of camcording of movies crimes, even in their own theatre.

Article 2.16: Seizure, forfeiture and destruction

Paragraph 1:

Canada is proposing that competent authorities have the power to authorise (rather than “order”, which is what the article reads otherwise) the seizure of suspected infringing goods and the implements associated with them

Paragraph 3:

Canada is proposing that authorities have the power to order forfeiture “at least for serious” offenses.

Section 4: Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment

Article 2.18: Enforcement Procedures in the Digital Environment

Canada has reserved the right to revisit the elements of this section at a later date, which may reflect the fluidity of Bill C-32.

Paragraph 1:

Canada has proposed that the wording of this article be limited to permit action against trademark, copyrights or related rights (as opposed to any type of intellectual property, which is what Japan, EU and Switzerland are proposing).

Paragraph 2:

In two instances of this paragraph, Canada is limiting the types of infringement covered by ACTA to copyrights or related rights, rather than general intellectual property rights, as the EU and Switzerland are proposing.

Paragraph 3(a)(iii):

Canada is proposing wording that clarifies that ISPs not be held liable in cases of referring or linking users to a location containing infringing material.

Paragraph 3(b):

Canada is proposing that ISPs can be allocated a defined period of time (rather than a more general “ “expeditiously”) to remove/disable access to infringing material.

Paragraph 3(c)(iii):

Canada is proposing that an ISP be exempt for liability if they have no actual knowledge of a court decision that materials are infringing.

Paragraph X: Exceptions to technological enforcement in 2.18.4

Canada is proposing wording slightly clarifying that a party can implement exception to provisions (rather than measures). Canada also proposes to distinguish the technological measures themselves from the provisions, so that exceptions apply to the provisions rather than to the measures.

Paragraph 6:

In the context of electronic rights management information, Canada is proposing that infringements of related rights is only enforceable when the related rights pertains to phonograms.

Paragraph 6(b):

Canada is proposing that importation for distribution only be an prohibited when the copyright owner is prejudicially affected.

Paragraph 7: Exceptions to technological enforcement

This paragraph seems to be almost identical to paragraph X, except that it may provide exceptions to 2.18.4 and 2.18.5.

As in paragraph 2.18.X, Canada is proposing wording slightly clarifying that a party can implement exception to provisions (rather than measures). Canada also proposes to distinguish the technological measures themselves from the provisions, so that exceptions apply to the provisions rather than to the measures.

The leaked version of the latest ACTA draft helpfully includes country positions, information that was scrubbed from the official release last April.  As I noted yesterday, much of the debate boils down to U.S. and European proposals with the remaining ACTA countries picking sides.  Jonathan O'Hara, one of my research students this summer, has helped compile a list of the Canadian positions where negotiators have failed to reach consensus.  It is notable that most Canadian positions seek to limit the scope of ACTA or incorporate some balancing provisions.

Chapter One: Initial Provisions and Definitions

Section A: Initial Provisions

Article 1.2: Nature and scope of obligations

In the phrase “more extensive protection and enforcement” Canadian is proposing to delete “protection”, which would limit the scope of ACTA to enforcement, rather than to protection of IP generally.

Article 1.3: Relation to standards concerning availability and scope of intellectual property rights

Canada is proposing to add a paragraph “No Party shall be obliged to apply this section to any goods that do not infringe an intellectual property right held within the territory of that Party.”

Canada seems to be attempting to limit the applicability of ACTA by requiring that IPRs be recognized in the territory of a member, for a member to have obligations to enforce IPRs.

Article 1.X: (General principles)

Canada is proposing to add an article that outlines principles of IP enforcement, such as technology dissemination and transfer, a manner conducive to social and economic welfare, measures necessary to protect health and nutrition, etc.

Section B: General Definitions

Canada has reserved its position on all the definitions pending discussion.

Chapter Two: Legal Framework for Enforcement of Intellectual Property Rights

General Obligations

Article 2.X: General obligations with respect to enforcement

Canada is proposing: “(3) In respect of civil remedies and criminal penalties for enforcement of intellectual property rights, each Party shall take into account, as appropriate the need for proportionality between the seriousness of the infringement, the interests of third parties and the applicable remedies or penalties.”

The major difference between this and another option is the requirement to take the interests of third parties into account, and that specificness of the wording around proportionality.

Canada is proposing in paragraph (5) that the agreement shall apply ONLY to trademark counterfeiting and copyright piracy.

Section 1: Civil Enforcement

Article 2.1: Availability of Civil Procedures

Canada is proposing that civil procedures only be available for copyright, related rights and trademark rights.

Article 2.X: Injunctions

Again Canada is limiting the availability of injunctions to copyright, related rights or trademarks.  Canada is suggesting that the power of judicial authorities be “subject to any statutory limitations under its domestic law”.  This suggesting has been explicitly opposed by the US, Japan, EU, Switzerland, Korea and Mexico.

Article 2.3: Other Remedies

In two paragraphs of this article Canada is proposing remedies regarding destruction of goods or implements to create the goods, be limited to good which are found to be related to piracy or counterfeiting.

Canada is also proposing that judicial authorities have the power to order the destruction to occur at the infringer's expense.

Article 2.5: Provisional Measures

Canada is proposing the that provision measures only be available where there is an imminent infringement of copyright, related rights or trademark rights.

Canada is proposing that for provisional measures, authorities can require sufficient evidence to ensure that infringement is imminent before provision measures are taken.

Section 2: Border Measures

Article 2.X: Scope of border measures

Canada is proposing that provisions for border measures be applied to trademark counterfeiting and copyright piracy.  While Canada has not explicitly used the work “only” to strictly limit the application of border measures, but the US, Singapore and Japan have suggested changes to the wording to make border measures more broadly available, including “applies to at least trademark counterfeiting and copyright piracy”.

Article 2.X: De Minimis Provision

Canada is proposing to make the wording of the de minimis provision the same as the TRIPS equivalent, and include goods “sent in small consignments”.

Article 2.6: Application by Right Holder

Canada is proposing that Parties shall provide procedures for import, but not be obligated to provide measures to exported goods. In a footnote to this, Canada is also wanting to clarify that there is no obligation to apply the procedures to grey market goods.   Canada is is also proposing that accepted applications for border measures be effective for a least one year.

Article 2.7: Ex-Officio Action

Canada is proposing that Parties give their customs authorities the power to suspend goods suspected of being pirated copyright or counterfeit trademarked while they are exported from the country or in transit through the country.  This differs from the position of the US who propose that Parties shall give their customs authorities the power to seize on import/export/transit.

Article 2.X (Information sharing cooperation in lieu of suspension of goods)

Canada is proposing that any information sharing between an exporting or transit country and the destination country is limited by and must be consistent with any bilateral information sharing agreements.

Article 2.9: Security or equivalent assurance

Canada proposes to modifying the wording of this article to apply to copyright, related rights or trademark rights, which is consistent with Canada's position that ACTA clearly apply only to those IPRs, rather than all IPRs.

Section 3: Criminal Enforcement

Article 2.14: Criminal Offenses

Paragraph 1:

Canada is proposing to clarify that criminal offenses apply to acts of piracy (rather than acts of infringement as the US is proposing).  In either case, the piracy or infringement still must be commercial in nature. This seems like an attempt by Canada to make clear that criminal enforcement applies to a specific subset of infringement activities, rather than using infringement loosely in different contexts.

Paragraph 5:

Canada is proposing to specifically include that a theatre manager can be guilty of camcording of movies crimes, even in their own theatre.

Article 2.16: Seizure, forfeiture and destruction

Paragraph 1:

Canada is proposing that competent authorities have the power to authorise (rather than “order”, which is what the article reads otherwise) the seizure of suspected infringing goods and the implements associated with them

Paragraph 3:

Canada is proposing that authorities have the power to order forfeiture “at least for serious” offenses.

Section 4: Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment

Article 2.18: Enforcement Procedures in the Digital Environment

Canada has reserved the right to revisit the elements of this section at a later date, which may reflect the fluidity of Bill C-32.

Paragraph 1:

Canada has proposed that the wording of this article be limited to permit action against trademark, copyrights or related rights (as opposed to any type of intellectual property, which is what Japan, EU and Switzerland are proposing).

Paragraph 2:

In two instances of this paragraph, Canada is limiting the types of infringement covered by ACTA to copyrights or related rights, rather than general intellectual property rights, as the EU and Switzerland are proposing.

Paragraph 3(a)(iii):

Canada is proposing wording that clarifies that ISPs not be held liable in cases of referring or linking users to a location containing infringing material.

Paragraph 3(b):

Canada is proposing that ISPs can be allocated a defined period of time (rather than a more general “ “expeditiously”) to remove/disable access to infringing material.

Paragraph 3(c)(iii):

Canada is proposing that an ISP be exempt for liability if they have no actual knowledge of a court decision that materials are infringing.

Paragraph X: Exceptions to technological enforcement in 2.18.4

Canada is proposing wording slightly clarifying that a party can implement exception to provisions (rather than measures).  Canada also proposes to distinguish the technological measures  themselves from the provisions, so that exceptions apply to the provisions rather than to the measures.

Paragraph 6:

In the context of electronic rights management information, Canada is proposing that infringements of related rights is only enforceable when the related rights pertains to phonograms.

Paragraph 6(b):

Canada is proposing that importation for distribution only be an prohibited when the copyright owner is prejudicially affected.

Paragraph 7: Exceptions to technological enforcement

This paragraph seems to be almost identical to paragraph X, except that it may provide exceptions to 2.18.4 and 2.18.5.

As in paragraph 2.18.X, Canada is proposing wording slightly clarifying that a party can implement exception to provisions (rather than measures).  Canada also proposes to distinguish the technological measures  themselves from the provisions, so that exceptions apply to the provisions rather than to the measures.

Content Country: 
Canada

ACTA Coming Down to Fight Between U.S. and Europe

ACTA Coming Down to Fight Between U.S. and Europe
With yesterday's leak of the full ACTA text (updated to include the recent round of talks in Lucerne) the simmering fight between the U.S. and the E.U. on ACTA is now being played out in the open. During the first two years of negotations, both sides were at pains to indicate that there was no consensus on transparency and the treaty would not change their domestic rules.  Over the past four months, the dynamic on both transparency and substance has changed.

With yesterday's leak of the full ACTA text (updated to include the recent round of talks in Lucerne) the simmering fight between the U.S. and the E.U. on ACTA is now being played out in the open. During the first two years of negotations, both sides were at pains to indicate that there was no consensus on transparency and the treaty would not change their domestic rules. Over the past four months, the dynamic on both transparency and substance has changed.

The turning point on transparency came as a result of two events in February and March. First, a Dutch government document leak that identified which specific countries were barriers to transparency. Once identified, the named European countries quickly came onside to support release of the text, leaving the U.S. as the obvious source of the problem. Second, the European Parliament became actively engaged in the ACTA process and demanded greater transparency. As the New Zealand round approached, it was clear that the Europeans needed a resolution on transparency. The U.S. delegation used the transparency issue as a bargaining chip, issuing a release at the start of the talks that it hoped that enough progress could be made to allow for consensus on sharing the text. The U.S. ultimately agreed to release the text, but subsequent events indicate that it still views transparency as a bargaining chip, rather than as a commitment.

At the conclusion of the latest round of negotiations in Lucerne, the U.S. did not achieve its goals for the talks and refused to agree to the release of an updated text. The disagreement between the U.S. and E.U. has played out in the open this week, with the USTR's Stan McCoy acknowledging that the talks did not achieve as much as the U.S. hoped and EU Commissioner Karel de Gucht plainly blaming the U.S. for blocking release of the text, indicating that he did not expect much progress in the next round on talks in Washington, and calling out the U.S. for its "hypocrisy" on key issues. The fact the text was leaked within hours of de Gucht's comments highlight Europe's frustration with the U.S. position on transparency.

The transparency fight is really cover for the bigger fight - the substance of the treaty. A review of the latest text reveals that virtually every major area of disagreement (there are still many) comes down to the U.S. on one side and the E.U. on the other. The various other ACTA countries including Canada, Mexico, Japan, Korea, Singapore, Australia, New Zealand, and Switzerland, are often simply left to pick a side. There are some independent proposals and some specific language suggestions from those countries (including a coalition of Australia, NZ, Singapore, and Canada promoting a provision on abuse of IP rights), but most of the agreement boils down to the U.S. vs. the E.U.

By far the biggest source of disagreement remains scope of the agreement, with the U.S. (supported by Australia, Canada, New Zealand, and Singapore) pushing for an agreement limited to trademark and copyright, while the E.U. and Switzerland seeking to extend it to all intellectual property. Of particular importance to the E.U. is the inclusion of geographical indications and industrial designs, with de Gucht calling the issue a "red line" issue and questioning the value of the treaty if they are not included. If they are included, many countries will be forced to make significant changes to their domestic laws, since many do not have criminal or civil enforcement or border measures dealing with the issue. In other words, satisfying the E.U. on the issue may require reneging on earlier commitments to leave domestic laws largely untouched. However, failure to satisfy the E.U. may ultimately kill the agreement altogether. Moreover, with the same U.S. companies that urged the government to negotiate ACTA, now warning against extending it too far, adopting the E.U. position risks alienating some of ACTA's biggest supporters. The issue of scope is one that will ultimately require one side to cave or otherwise leave ACTA in limbo for the foreseeable future.

With yesterday's leak of the full ACTA text (updated to include the recent round of talks in Lucerne) the simmering fight between the U.S. and the E.U. on ACTA is now being played out in the open. During the first two years of negotations, both sides were at pains to indicate that there was no consensus on transparency and the treaty would not change their domestic rules.  Over the past four months, the dynamic on both transparency and substance has changed.

The turning point on transparency came as a result of two events in February and March. First, a Dutch government document leak that identified which specific countries were barriers to transparency.  Once identified, the named European countries quickly came onside to support release of the text, leaving the U.S. as the obvious source of the problem.  Second, the European Parliament became actively engaged in the ACTA process and demanded greater transparency.  As the New Zealand round approached, it was clear that the Europeans needed a resolution on transparency.  The U.S. delegation used the transparency issue as a bargaining chip, issuing a release at the start of the talks that it hoped that enough progress could be made to allow for consensus on sharing the text.  The U.S. ultimately agreed to release the text, but subsequent events indicate that it still views transparency as a bargaining chip, rather than as a commitment.

At the conclusion of the latest round of negotiations in Lucerne, the U.S. did not achieve its goals for the talks and refused to agree to the release of an updated text.  The disagreement between the U.S. and E.U. has played out in the open this week, with the USTR's Stan McCoy acknowledging that the talks did not achieve as much as the U.S. hoped and EU Commissioner Karel de Gucht plainly blaming the U.S. for blocking release of the text, indicating that he did not expect much progress in the next round on talks in Washington, and calling out the U.S. for its "hypocrisy" on key issues.  The fact the text was leaked within hours of de Gucht's comments highlight Europe's frustration with the U.S. position on transparency.

The transparency fight is really cover for the bigger fight - the substance of the treaty.  A review of the latest text reveals that virtually every major area of disagreement (there are still many) comes down to the U.S. on one side and the E.U. on the other.  The various other ACTA countries including Canada, Mexico, Japan, Korea, Singapore, Australia, New Zealand, and Switzerland, are often simply left to pick a side.  There are some independent proposals and some specific language suggestions from those countries (including a coalition of Australia, NZ, Singapore, and Canada promoting a provision on abuse of IP rights), but most of the agreement boils down to the U.S. vs. the E.U. 

By far the biggest source of disagreement remains scope of the agreement, with the U.S. (supported by Australia, Canada, New Zealand, and Singapore) pushing for an agreement limited to trademark and copyright, while the E.U. and Switzerland seeking to extend it to all intellectual property.  Of particular importance to the E.U. is the inclusion of geographical indications and industrial designs, with de Gucht calling the issue a "red line" issue and questioning the value of the treaty if they are not included.  If they are included, many countries will be forced to make significant changes to their domestic laws, since many do not have criminal or civil enforcement or border measures dealing with the issue.  In other words, satisfying the E.U. on the issue may require reneging on earlier commitments to leave domestic laws largely untouched.  However, failure to satisfy the E.U. may ultimately kill the agreement altogether.  Moreover, with the same U.S. companies that urged the government to negotiate ACTA, now warning against extending it too far, adopting the E.U. position risks alienating some of ACTA's biggest supporters.  The issue of scope is one that will ultimately require one side to cave or otherwise leave ACTA in limbo for the foreseeable future.

Content Country: 
United States
European Union

Battle Lines Drawn on ACTA: EU Commissioner Says Scope is "Red Line" for Treaty

Battle Lines Drawn on ACTA: EU Commissioner Says Scope is "Red Line" for Treaty
There were two ACTA events yesterday that provided the U.S. and European perspectives on latest round and future developments.  EC Commissioner Karel de Guchtappeared before a European Parliament committee and provided some details on the most recent round along some pointed criticism of the U.S. position on some key issues.

There were two ACTA events yesterday that provided the U.S. and European perspectives on latest round and future developments. EC Commissioner Karel de Gucht appeared before a European Parliament committee and provided some details on the most recent round along some pointed criticism of the U.S. position on some key issues. Some of the key points raised during de Gucht's appearance:

  • The EU language on Internet may serve as compromise on that chapter
  • On border issues, consensus may only reachable on basis of the "lowest common denominator"
  • The U.S. position on ACTA transparency is "counter-productive"
  • de Gucht believes India and Brazil are using ACTA to score political points on the generic medicines issue
  • Inclusion of designs and geographic indications in ACTA is a "red line" issue. If they are not included, the EU must question the benefit of the agreement. De Gucht argues the U.S. is using trademarks for same purpose as geographic indications and it is "hypocrisy" to exclude from the agreement. He emphasized the EU "cannot swallow this" and that this will be a major point of discussion at the next round of talks.
  • Next round of talks will be held in July in Washington. At least two more rounds are required rest of the year. There is a fundamental split between negotiating parties on scope. He does not expect a breakthrough in the Washington round.

Meanwhile in Washington, USTR's Stan McCoy was part of a panel on ACTA. McCoy noted that there was some progress on ACTA in Lucerne, but not as much the U.S. had hoped. He said that the U.S. delegation was prepared to stay for further discussions but that others were not. As for the issue of transparency, McCoy said the delegations needed "to strike the balance" in working on ACTA and dealing with stakeholders. He suggested that the April text reflected the issues that are still "out there" on ACTA.

McCoy was asked why ACTA is even needed if the participating countries have similar rules already and ACTA may include some flexibility for compliance. His response: the U.S. can't do it alone and need co-operation from other governments. He summed up by saying that ACTA is needed for international leadership, cooperation, and a stronger baseline of enforcement.

The Washington event video is posted below. The EU event video can be accessed for the next six days here.

The Anti-Counterfeiting Trade Agreement from Broadband Breakfast on Vimeo.

There were two ACTA events yesterday that provided the U.S. and European perspectives on latest round and future developments.  EC Commissioner Karel de Gucht appeared before a European Parliament committee and provided some details on the most recent round along some pointed criticism of the U.S. position on some key issues. Some of the key points raised during de Gucht's appearance:

  • The EU language on Internet may serve as compromise on that chapter
  • On border issues, consensus may only reachable on basis of the "lowest common denominator"
  • The U.S. position on ACTA transparency is "counter-productive"
  • de Gucht believes India and Brazil are using ACTA to score political points on the generic medicines issue
  • Inclusion of designs and geographic indications in ACTA is a "red line" issue.  If they are not included, the EU must question the benefit of the agreement.  De Gucht argues the U.S. is using trademarks for same purpose as geographic indications and it is "hypocrisy" to exclude from the agreement.  He emphasized the EU "cannot swallow this" and that this will be a major point of discussion at the next round of talks.
  • Next round of talks will be held in July in Washington.  At least two more rounds are required rest of the year.  There is a fundamental split between negotiating parties on scope.  He does not expect a breakthrough in the Washington round.

Meanwhile in Washington, USTR's Stan McCoy was part of a panel on ACTA.  McCoy noted that there was some progress on ACTA in Lucerne, but not as much the U.S. had hoped.  He said that the U.S. delegation was prepared to stay for further discussions but that others were not.  As for the issue of transparency, McCoy said the delegations needed "to strike the balance" in working on ACTA and dealing with stakeholders.  He suggested that the April text reflected the issues that are still "out there" on ACTA. 

McCoy was asked why ACTA is even needed if the participating countries have similar rules already and ACTA may include some flexibility for compliance.  His response: the U.S. can't do it alone and need co-operation from other governments.  He summed up by saying that ACTA is needed for international leadership, cooperation, and a stronger baseline of enforcement.

The Washington event video is posted below.  The EU event video can be accessed for the next six days here.

The Anti-Counterfeiting Trade Agreement from Broadband Breakfast on Vimeo.

Content Country: 
United States
European Union

The ACTA Timeline: An Update

The ACTA Timeline: An Update
Last December, I posted a timeline of the Anti-Counterfeiting Trade Agreement, with links to developments tracing back to 2004. With the ninth round of talks now concluded,  I've updated the timeline with new links, documents, and videos from the past six months.

Last December, I posted a timeline of the Anti-Counterfeiting Trade Agreement, with links to developments tracing back to 2004. With the ninth round of talks now concluded, I've updated the timeline with new links, documents, and videos from the past six months.

 

The ACTA Timeline on Dipity.

Last December, I posted a timeline of the Anti-Counterfeiting Trade Agreement, with links to developments tracing back to 2004. With the ninth round of talks now concluded,  I've updated the timeline with new links, documents, and videos from the past six months.

 

The ACTA Timeline on Dipity.

ACTA Consensus on Transparency Breaks Down

ACTA Consensus on Transparency Breaks Down
The 9th round of ACTA talks concluded last week in Lucerne, Switzerland.  I briefly noted the official statement last week, but a subsequent news report makes it clear that the most important development to come out of the meeting is the breakdown of a consensus on transparency.  Following the New Zealand meeting in April, there was consensus achieved on the need to release a draft version of the text.  It is now clear that the overwhelming majority of countries favoured continuing this approach by releasing updated versions at the conclusion of subsequent meetings.  That did not happen after the Lucerne meeting, however, with both the Swiss and European Commission delegations indicating that they favoured releasing the text but that one delegation did not.  It is a safe bet that the U.S. is once again the key holdout on the transparency issue.

The 9th round of ACTA talks concluded last week in Lucerne, Switzerland. I briefly noted the official statement last week, but a subsequent news report makes it clear that the most important development to come out of the meeting is the breakdown of a consensus on transparency. Following the New Zealand meeting in April, there was consensus achieved on the need to release a draft version of the text. It is now clear that the overwhelming majority of countries favoured continuing this approach by releasing updated versions at the conclusion of subsequent meetings. That did not happen after the Lucerne meeting, however, with both the Swiss and European Commission delegations indicating that they favoured releasing the text but that one delegation did not. It is a safe bet that the U.S. is once again the key holdout on the transparency issue.

The report also highlights the continuing disagreement on the scope of ACTA. While negotiators emphasized in a meeting with NGOs last week that patents have been removed from the border measures chapter, the extension of ACTA beyond copyright and trademark for the other chapters remains a central area of disagreement. The extension is not just a patents issue - the EU, Switzerland, and Mexico all want ACTA to cover "geographic indications", a move opposed by the U.S., Canada, and many other participants. The issue was described by the official as a "deal breaker" that will only be settled at the very end of the talks (which could come by the end of 2010).

Given the negotiators claims of progress on a number of issues (including damages), the decision to keep an updated version of the text secret represents a huge setback. It is impossible to provide effective input given the veil of secrecy associated with this treaty and asking interested parties - including the many elected officials in countries around the world - to rely on outdated texts should be viewed as an absolute non-starter.

The 9th round of ACTA talks concluded last week in Lucerne, Switzerland.  I briefly noted the official statement last week, but a subsequent news report makes it clear that the most important development to come out of the meeting is the breakdown of a consensus on transparency.  Following the New Zealand meeting in April, there was consensus achieved on the need to release a draft version of the text.  It is now clear that the overwhelming majority of countries favoured continuing this approach by releasing updated versions at the conclusion of subsequent meetings.  That did not happen after the Lucerne meeting, however, with both the Swiss and European Commission delegations indicating that they favoured releasing the text but that one delegation did not.  It is a safe bet that the U.S. is once again the key holdout on the transparency issue.

The report also highlights the continuing disagreement on the scope of ACTA.  While negotiators emphasized in a meeting with NGOs last week that patents have been removed from the border measures chapter, the extension of ACTA beyond copyright and trademark for the other chapters remains a central area of disagreement.  The extension is not just a patents issue - the EU, Switzerland, and Mexico all want ACTA to cover "geographic indications", a move opposed by the U.S., Canada, and many other participants.  The issue was described by the official as a "deal breaker" that will only be settled at the very end of the talks (which could come by the end of 2010).

Given the negotiators claims of progress on a number of issues (including damages), the decision to keep an updated version of the text secret represents a huge setback.  It is impossible to provide effective input given the veil of secrecy associated with this treaty and asking interested parties - including the many elected officials in countries around the world - to rely on outdated texts should be viewed as an absolute non-starter.

Content Country: 
Switzerland

ACTA Workshop: China, Pakistan, Brazil Express Significant Concerns

ACTA Workshop: China, Pakistan, Brazil Express Significant Concerns
I attended a workshop on ACTA in Geneva yesterday that included government attendees from China, India, Pakistan, and other leading developing countries. Some key takeaways are including in this post.

I attended a workshop on ACTA in Geneva yesterday that included government attendees from China, India, Pakistan, and other leading developing countries. Some key takeaways:

  • China expressed serious concerns with ACTA as upsetting the IP balance and harming the interests of the developing world.  It argued that this may provide an opportunity to reconsider and re-examine the protection of intellectual property more generally, with the root cause of infringement attributable to development differences.  The Chinese presentation concluded with a call for the WTO to lead on these issues.  The China official also interestingly referenced Industry Minister Tony Clement's admission that he infringed copyright by copying music onto his iPod.  The official said the story appeared on CNN.
  • Pakistan expressed concern about ACTA's relationship with TRIPS, particularly whether ACTA norms would make their way into the WTO.
  • Brazil is not sure how to react.  It has raised concerns at the WTO and is still examining ACTA as negotiations proceed.  It has no doubt that ACTA is an institution is in the making.

I attended a workshop on ACTA in Geneva yesterday that included government attendees from China, India, Pakistan, and other leading developing countries. Some key takeaways:

  • China expressed serious concerns with ACTA as upsetting the IP balance and harming the interests of the developing world.  It argued that this may provide an opportunity to reconsider and re-examine the protection of intellectual property more generally, with the root cause of infringement attributable to development differences.  The Chinese presentation concluded with a call for the WTO to lead on these issues.  The China official also interestingly referenced Industry Minister Tony Clement's admission that he infringed copyright by copying music onto his iPod.  The official said the story appeared on CNN.
  • Pakistan expressed concern about ACTA's relationship with TRIPS, particularly whether ACTA norms would make their way into the WTO.
  • Brazil is not sure how to react.  It has raised concerns at the WTO and is still examining ACTA as negotiations proceed.  It has no doubt that ACTA is an institution is in the making.

 

ACTA: The State of Play

ACTA: The State of Play
Negotiations on the Anti-Counterfeiting Trade Agreement resume today in Lucerne, Switzerland with the ninth round of talks.   I'll have several ACTA posts this week, but start with a talk I gave earlier this month at a conference on ACTA at the American University, Washington College of Law.

Negotiations on the Anti-Counterfeiting Trade Agreement resume today in Lucerne, Switzerland with the ninth round of talks.   I'll have several ACTA posts this week, but start with a talk I gave earlier this month at a conference on ACTA at the American University, Washington College of Law.  The posted version includes a recording of the talk along with my slides (YouTube version here).  There is also a streamed version available from AU.

http://blip.tv/play/AYHp5xgC

Negotiations on the Anti-Counterfeiting Trade Agreement resume today in Lucerne, Switzerland with the ninth round of talks.   I'll have several ACTA posts this week, but start with a talk I gave earlier this month at a conference on ACTA at the American University, Washington College of Law.  The posted version includes a recording of the talk along with my slides (YouTube version here).  There is also a streamed version available from AU.

http://blip.tv/play/AYHp5xgC

NDP MP Charlie Angus Responds to Moore's Attacks

NDP MP Charlie Angus Responds to Moore's Attacks
The House of Commons is shut down due to today's earthquake, but I have received a copy of a release from the office of NDP MP Charlie Angus which responds to Canadian Heritage Minister James Moore's attack on fair copyright.  The NDP planned to issue the release today, but cannot due to the office closure.  I was given permission to post the release in its entirety. FOR IMMEDIATE RELEASEJUNE 23, 2010 NEW DEMOCRATS CALL MOORE OFFSIDE FOR ATTACKING FAIR COPYRIGHT ADVOCATESMinister’s description of ‘radical extremists’ shows he’s in need of a time-out  
TIMMINS – Speaking at a G20 Chamber of Commerce event, Heritage Minister James Moore inexplicably lashed out at those who have raised concerns with his new copyright bill, C-32. Moore characterised fair copyright advocates as “babyish” and enemies of any copyright reform whatsoever. He called them “radical extremists” who must be “confronted every step of the way until they are defeated.” New Democrat Digital Affairs Critic Charlie Angus (Timmins-James Bay) said Moore’s comments are reminiscent of a war-time call-to-arms and are way out of line.

“Attacking teachers, students, artists and consumers who have legitimate questions about this legislation is ridiculous,” said Angus. “Instead of understanding and appreciating the nuances of balanced copyright, the Minister is appearing hyper-defensive and bombastic. I think he needs a time out.”

In his speech to the conference, Moore claimed the government’s attack on consumer rights are necessitated by Canada’s international obligations under the World Intellectual Property Organization (WIPO) treaties.  Angus says Moore simply has his facts wrong.

“James Moore shouldn’t hide behind international treaties to excuse the significant stumbling blocks he has put into the bill. All the experts, including those civil servants who drafted the bill, agree that it could be WIPO-compliant without his push for American-style protection for digital locks,” said Angus. “The Tories are pushing this failed agenda that will criminalize perfectly reasonable behaviour and deny educators legal access to works which they should logically have.”

Angus says Moore needs to tone down the rhetoric and get down to the serious business of working with all stakeholders on amendments that will improve the legislation.

“A Minister shouldn’t resort to name calling or start a war with fair-copyright advocates just because he doesn’t like the feedback he’s getting on Twitter,” said Angus.  “If Moore spent more time listening to the educators, experts, academics and artists who have serious issues with this bill, maybe his public statements wouldn’t be so out of line with everyday Canadians who simply want balanced legislation.”

-30-

For more information please contact:

George Soule, Caucus Press Secretary: 613-850-3448 or souleg@parl.gc.ca

ACTA Emergency Communique: Add Your Name Today

ACTA Emergency Communique: Add Your Name Today
Last week, I had the honour of delivering the opening keynote address at a conference on the Anti-Counterfeiting Trade Agreement held in Washington.  The event brought together over 90 academics, practitioners and public interest organizations from five continents at American University Washington College of Law.  The resulting papers are among the most comprehensive anywhere on the implications of ACTA for countries around the world.

Last week, I had the honour of delivering the opening keynote address at a conference on the Anti-Counterfeiting Trade Agreement held in Washington.  The event brought together over 90 academics, practitioners and public interest organizations from five continents at American University Washington College of Law.  The resulting papers are among the most comprehensive anywhere on the implications of ACTA for countries around the world.

I plan to post my presentation shortly, but with negotiations scheduled to resume next week of greater urgency is a draft statement the reflects the conclusion of the meeting.  The statement is now open to endorsements.  Please read and consider adding your name to it by the deadline of Wednesday, June 23rd at 9:00 am by visiting the PIJIP site or emailing acta.declaration@gmail.com.  A draft is posted below:

This DRAFT statement reflects the conclusions reached at a meeting of over 90 academics, practitioners and public interest organizations from five continents gathered at American University Washington College of Law, June 16-18, 2010. In the days following the meeting, the statement received the individual and organizational endorsements listed below, and is still open for further endorsements at www.pijip.org

The meeting, convened by American University's Program on Information Justice and Intellectual Property, was called to analyze the official text of the Anti-Counterfeiting Trade Agreement (ACTA), released for the first time in April, 2010, after years of secretive negotiations. The text was released in the context of public criticism of the process and presumed substance of the negotiations (see Wellington Declaration, EU Resolution on Transparency and State of Play of the ACTA Negotiations). Negotiators claim that ACTA will not harm significant public interests.


We find that the terms of the agreement threaten numerous public interests, including nearly every concern specifically disclaimed by the negotiators in their announcement.
The proposed agreement is a deeply flawed product of a deeply flawed process.

What started as a proposal to coordinate customs enforcement offices has morphed into a massive new international intellectual property (IP) and internet regulation with grave consequences for the global economy and governments' ability to promote and protect public interests.

Any agreement of this scope and consequence must be based on a broad and consultative process and reflect a full range of public interest concerns. As detailed below, this text fails to meet these standards.

Recognizing that the terms of the agreement are under negotiation, a fair reading of the proposed text as a whole leads to our conclusions that ACTA:

THE INTERNET
-Encourages internet service providers to police users of the internet without adequate court oversight or due process;

-Globalizes 'anti-circumvention' provisions which threaten innovation, competition, open source business models, interoperability, copyright exceptions, and user choice;

FREE TRADE AND ACCESS TO MEDICINES
-Disrupts the free trade in legitimate generic medicines and other goods, and sacrifices the foundational principle that IP rights are territorial, by requiring customs authorities to seize goods in transit countries even when they do not violate any law of the producing and importing countries;

-Does little or nothing to address the problem of medicines with insufficient or wrong ingredients as the majority of these are not IP but regulatory system problems.

-Extends the powers of custom officials to search and seize a wide range of goods, including computers and other electronic devices, without adequate safeguards against unwarranted confiscations and privacy invasions;

-Extends 'ex officio' border search and seizures from willful, commercial scale trademark counterfeiting to a broad range of intellectual property infringements, including “confusingly similar” trademark violations, copyright infringement standards that require interpretation of "fair use" or similar user rights, and even to patent cases which frequently involve complex questions of law and fact that are difficult to adjudicate even by specialist courts after full adjudicative processes;
FUNDAMENTAL RIGHTS AND FREEDOMS
-Will curtail full enjoyment of fundamental rights and liberties, including rights to privacy and the protection of personal data, health, access to information, free expression, due process and presumptions of innocence, cultural participation, and other internationally protected human rights;

SCOPE AND NATURE OF IP LAW
Distorts the balance fundamental to IP law between the rights and interests of proprietors and users, including by

* introducing very specific rights and remedies for rights holders without correlative requirements to provide exceptions, limitations, and due process safeguards for users;
* shifting enforcement from private civil mechanisms to public authorities and third parties, including to customs officials, criminal prosecutors and internet service providers -- in ways that are likely to be more sensitive to proprietary concerns and less sensitive to user concerns;
* omitting liability and disincentives for abuses of enforcement processes by right holders; and
* requiring the adoption of automatic damages assessments unrelated to any proven harm;

-Alters the traditional and constitutionally mandated law making processes for IP by:

* locking in and exporting controversial aspects of US and EU enforcement practices whcih have already proven problematic, foreclosing future legislative improvements in response to changes in technology or policy;
* requiring substantive changes to intellectual property laws of a large number of negotiating countries.

INTERNATIONAL TRADE AND DEVELOPMENT
-Will disproportionately harm development and social welfare of the poor, particularly in developing countries, including through raising unjustifiable trade barriers to imports and exports of needed medicines and other knowledge embedded goods;

-Contains provisions inconsistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement);

-Conflicts with the World Trade Organization Doha Declaration on TRIPS and Public Health and World Health Assembly Resolution 61.21 by limiting the ability of countries to exercise to the full flexibilities in the TRIPS agreement that can promote access to needed medicines;

-Circumvents and undermines the commitments agreed to under the World Intellectual Property Organization development agenda, particularly recommendation 45 committing to “approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns," and "in accordance with Article 7 of the TRIPS Agreement";

INSTITUTIONAL ISSUES
-Creates a new and redundant international administration for IP issues outside of WIPO or the WTO with broad powers but limited transparency, threatening multilateralism in international IP norm setting;

-Encourages technical assistance, public awareness campaigns, and partnerships with the private sector that appear designed to promote only the interests of IP owners;

CONCLUSIONS ABOUT THE DEMOCRATIC PROCESS

The current process for considering public input into ACTA is fundamentally flawed in numerous respects. In many countries, the only consultations taking place are with select members of the public, off-the-record and without benefit of sharing the latest version of the rapidly changing text. There is little possibility that a fair and balanced agreement that protects and promotes public interests can evolve from such a distorted policy making process.

Governments, right holders and civil society should have an open and evidence-based discussion on the right strategy to confront willful commercial scale trademark counterfeiting and commercial scale copyright piracy. This discussion should take place in multilateral and national open and on-the-record forums with access to current negotiating text so that all interested stakeholders can participate.

Last week, I had the honour of delivering the opening keynote address at a conference on the Anti-Counterfeiting Trade Agreement held in Washington.  The event brought together over 90 academics, practitioners and public interest organizations from five continents at American University Washington College of Law.  The resulting papers are among the most comprehensive anywhere on the implications of ACTA for countries around the world.

I plan to post my presentation shortly, but with negotiations scheduled to resume next week of greater urgency is a draft statement the reflects the conclusion of the meeting.  The statement is now open to endorsements.  Please read and consider adding your name to it by the deadline of Wednesday, June 23rd at 9:00 am by visiting the PIJIP site or emailing acta.declaration@gmail.com.  A draft is posted below:

This DRAFT statement reflects the conclusions reached at a meeting of over 90 academics, practitioners and public interest organizations from five continents gathered at American University Washington College of Law, June 16-18, 2010. In the days following the meeting, the statement received the individual and organizational endorsements listed below, and is still open for further endorsements at www.pijip.org

The meeting, convened by American University's Program on Information Justice and Intellectual Property, was called to analyze the official text of the Anti-Counterfeiting Trade Agreement (ACTA), released for the first time in April, 2010, after years of secretive negotiations. The text was released in the context of public criticism of the process and presumed substance of the negotiations (see Wellington Declaration, EU Resolution on Transparency and State of Play of the ACTA Negotiations). Negotiators claim that ACTA will not harm significant public interests.


We find that the terms of the agreement threaten numerous public interests, including nearly every concern specifically disclaimed by the negotiators in their announcement.
The proposed agreement is a deeply flawed product of a deeply flawed process.

What started as a proposal to coordinate customs enforcement offices has morphed into a massive new international intellectual property (IP) and internet regulation with grave consequences for the global economy and governments' ability to promote and protect public interests.

Any agreement of this scope and consequence must be based on a broad and consultative process and reflect a full range of public interest concerns. As detailed below, this text fails to meet these standards.

Recognizing that the terms of the agreement are under negotiation, a fair reading of the proposed text as a whole leads to our conclusions that ACTA:

THE INTERNET
-Encourages internet service providers to police users of the internet without adequate court oversight or due process;

-Globalizes 'anti-circumvention' provisions which threaten innovation, competition, open source business models, interoperability, copyright exceptions, and user choice;

FREE TRADE AND ACCESS TO MEDICINES
-Disrupts the free trade in legitimate generic medicines and other goods, and sacrifices the foundational principle that IP rights are territorial, by requiring customs authorities to seize goods in transit countries even when they do not violate any law of the producing and importing countries;

-Does little or nothing to address the problem of medicines with insufficient or wrong ingredients as the majority of these are not IP but regulatory system problems.

-Extends the powers of custom officials to search and seize a wide range of goods, including computers and other electronic devices, without adequate safeguards against unwarranted confiscations and privacy invasions;

-Extends 'ex officio' border search and seizures from willful, commercial scale trademark counterfeiting to a broad range of intellectual property infringements, including “confusingly similar” trademark violations, copyright infringement standards that require interpretation of "fair use" or similar user rights, and even to patent cases which frequently involve complex questions of law and fact that are difficult to adjudicate even by specialist courts after full adjudicative processes;
FUNDAMENTAL RIGHTS AND FREEDOMS
-Will curtail full enjoyment of fundamental rights and liberties, including rights to privacy and the protection of personal data, health, access to information, free expression, due process and presumptions of innocence, cultural participation, and other internationally protected human rights;

SCOPE AND NATURE OF IP LAW
Distorts the balance fundamental to IP law between the rights and interests of proprietors and users, including by

* introducing very specific rights and remedies for rights holders without correlative requirements to provide exceptions, limitations, and due process safeguards for users;
* shifting enforcement from private civil mechanisms to public authorities and third parties, including to customs officials, criminal prosecutors and internet service providers -- in ways that are likely to be more sensitive to proprietary concerns and less sensitive to user concerns;
* omitting liability and disincentives for abuses of enforcement processes by right holders; and
* requiring the adoption of automatic damages assessments unrelated to any proven harm;

-Alters the traditional and constitutionally mandated law making processes for IP by:

* locking in and exporting controversial aspects of US and EU enforcement practices whcih have already proven problematic, foreclosing future legislative improvements in response to changes in technology or policy;
* requiring substantive changes to intellectual property laws of a large number of negotiating countries.

INTERNATIONAL TRADE AND DEVELOPMENT
-Will disproportionately harm development and social welfare of the poor, particularly in developing countries, including through raising unjustifiable trade barriers to imports and exports of needed medicines and other knowledge embedded goods;

-Contains provisions inconsistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement);

-Conflicts with the World Trade Organization Doha Declaration on TRIPS and Public Health and World Health Assembly Resolution 61.21 by limiting the ability of countries to exercise to the full flexibilities in the TRIPS agreement that can promote access to needed medicines;

-Circumvents and undermines the commitments agreed to under the World Intellectual Property Organization development agenda, particularly recommendation 45 committing to “approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns," and "in accordance with Article 7 of the TRIPS Agreement";

INSTITUTIONAL ISSUES
-Creates a new and redundant international administration for IP issues outside of WIPO or the WTO with broad powers but limited transparency, threatening multilateralism in international IP norm setting;

-Encourages technical assistance, public awareness campaigns, and partnerships with the private sector that appear designed to promote only the interests of IP owners;

CONCLUSIONS ABOUT THE DEMOCRATIC PROCESS

The current process for considering public input into ACTA is fundamentally flawed in numerous respects. In many countries, the only consultations taking place are with select members of the public, off-the-record and without benefit of sharing the latest version of the rapidly changing text. There is little possibility that a fair and balanced agreement that protects and promotes public interests can evolve from such a distorted policy making process.

Governments, right holders and civil society should have an open and evidence-based discussion on the right strategy to confront willful commercial scale trademark counterfeiting and commercial scale copyright piracy. This discussion should take place in multilateral and national open and on-the-record forums with access to current negotiating text so that all interested stakeholders can participate.