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Anti-Counterfeiting Trade Agreement

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ACTA
Anti-Counterfeiting Trade Agreement
TypePlurilateral agreement, status draft
DraftedOfficial negotiation started in June 2008
(public draft released April 20, 2010)
PartiesAustralia, Canada, the European Union, Japan, Mexico, Morocco, New Zealand, the Republic of Korea, Singapore, Switzerland and the United States
LanguageEnglish

The Anti-Counterfeiting Trade Agreement (ACTA) is a proposed plurilateral agreement for the purpose of establishing international standards on intellectual property rights enforcement.[1] ACTA would establish a new international legal framework that countries can join on a voluntary basis[2] and would create its own governing body outside existing international institutions such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) or the United Nations.[1][3] Negotiating countries have described it as a response "to the increase in global trade of counterfeit goods and pirated copyright protected works."[2] The scope of ACTA is broad, including counterfeit goods, generic medicines and copyright infringement on the Internet.[4] Because it is in effect a treaty, ACTA would overcome many court precedents defining consumer rights as to "fair use" and would either change or remove limitations on the application of intellectual property laws.

After a series of draft text leaks in 2008, 2009 and 2010 the negotiating parties published the official version of the current draft on 20 April 2010.[5] The idea to create a plurilateral agreement on counterfeiting was developed by Japan and the United States in 2006. Canada, the European Union and Switzerland joined the preliminary talks throughout 2006 and 2007. Official negotiations began in June 2008, with Australia, Mexico, Morocco, New Zealand, the Republic of Korea and Singapore joining the talks. It is planned for negotiations to finish in September 2010.[6]

ACTA would establish a new international legal framework that countries can join on a voluntary basis[2] and would create its own governing body outside existing international institutions such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) or the United Nations.[1][3] With regards to the reason for not pursuing ACTA through the G8, WTO, WIPO or other formal existing structures the European Commission explains that a free-standing agreement provides the most flexibility "to pursue this project among interested countries", while stating that "the membership and priorities of those organizations (G8, WTO, and WIPO) simply are not the most conducive to this kind of path breaking project."[1] The draft treaty's title suggests that the agreement only covers infringement of patents, that is counterfeit physical goods such as medicines, however the draft treaty also covers infringement of copyright in the context of "Internet distribution and information technology".[4]

An official Summary of Key Elements Under Discussion published November 2009 states that "ACTA aims to build on existing international rules in the area of intellectual property, in particular on the TRIPS Agreement, and is intended to address a number of enforcement issues where participants have identified that an international legal framework does not exist or needs to be strengthened."[6] According to the European Commission, the goal of ACTA is to establish an international framework that improves the enforcement of existing intellectual property right laws. The Commission states that ACTA is to create improved international standards for actions against large-scale infringements of intellectual property. To this end ACTA will have three primary components: "international cooperation"; "enforcement practices"; and "legal framework for enforcement of intellectual property rights". The "ultimate objective" of ACTA is that large emerging economies, "where intellectual property rights enforcement could be improved, such as China, Russia or Brazil, will sign up to the global pact".[1] The 2008 Special 301 Report published by the Office of the United States Trade Representative (USTR) states that "ACTA will bring together countries that recognize the critical importance of strong IPR enforcement for a prosperous economy. The ACTA is envisioned as a leadership effort among countries that will raise the international standard for IPR enforcement to address today’s challenges of counterfeiting and piracy. ACTA will build upon the Administration’s prior bilateral and regional cooperation successes."[7]

First public draft -- April 2010

At the 8th round of negotiations, 12–16 April 2010 in Wellington, New Zealand, it was agreed to release the official current draft text, which was published on 20 April 2010. As a draft the text that is still subject to negotiation, and the published draft text includes alternative wording and suggestions in brackets. The published draft text does not indicate the position of individual countries.[8]

Chapter two of the draft agreement is the largest single chapter. The draft has six chapters:

  • Chapter 1. Initial Provisions and Definitions;
  • Chapter 2. Legal Framework For Enforcement of Intellectual Property Rights;
  • Chapter 3. International Cooperation;
  • Chapter 4. Enforcement Practices;
  • Chapter 5. Institutional Arrangements;
  • Chapter 6. Final Provisions.[5]

Chapter 2 of the draft treaty has four sections, making provisions on "Civil Enforcement", "Border Measures", "Criminal Enforcement" and "Intellectual Property Rights Enforcement in the Digital Environment".[6]

An official Summary of Key Elements Under Discussion from November 2009 summarises the key points of discussions between negotiating countries for each of the four sections.[6]

  • Section 1, entitled "Civil Enforcement", provides for actions that courts and other "competent authority" can take after infringement of intellectual property rights has been established. Points of discussion include "the authority of the judicial authorities to order injunctions which require that a party desist from an infringement" and "the definition of adequate damages and the question of how to determine the amount of damages, particularly when a right holder encounters difficulties in calculating the exact amount of damage it has incurred."
  • Section 2 on "Border Measures" covers "actions that customs and other competent authorities would be authorized to take to prevent goods that infringe intellectual property rights from crossing borders." Discussions are focused on "procedures that must accompany these actions", including "a de minimis exception that could permit travellers to bring goods for personal use" and arrangements for "right holders to request customs authorities to suspend the entry of goods suspected to infringe intellectual property rights at the border".[6]
  • Section 3, entitled "Criminal Enforcement", is focused on criminal procedures and penalties. Negotiations seek to "clarify the scale of infringement necessary to qualify for criminal sanctions in cases of trademark counterfeiting and copyright and related rights piracy" and the possibility of "criminal procedures and penalties in cases of camcording motion pictures or other audiovisual works". Under discussion are also the scope of criminal penalties and whether "authorities should be empowered to take action against infringers on their own initiative... without complaint by right holders".
  • Section 4 on "Intellectual Property Rights Enforcement in the Digital Environment" is meant to address "some of the special challenges that new technologies pose for enforcement of intellectual property rights." Amongst others the negotiations for this section include discussion about the "availability of remedies" in relation to "infringing material online, including limitations on the application of those remedies to online service providers" and "the circumvention of technological protection measures".[6]

Negotiations

Negotiations for the ACTA treaty are not part of any international body.[2] According to the United States Trade Representative agency (USTR), preliminary talks about ACTA took place throughout 2006 and 2007 between United States, Canada, the European Commission, Japan and Switzerland.[4] On 23 October 2007 the United States, the European Community, Switzerland and Japan simultaneously announced that they would negotiate ACTA.[9] In June 2010 India and China, which are not part of the negotiation, described ACTA as a "TRIPs-plus" measure, arguing that the draft agreement goes beyond the Agreement on Trade-Related Aspects of Intellectual Property Rights, knows as TRIPS, which was negotiated through the World Trade Organisation (WTO). Concerns that ACTA could distort trade were raised at the WTO's TRIPS council and reportedly had the backing of "the bulk of the WTO's 153 members".[10]

Official rounds of negotiations

The idea to create a plurilateral agreement on counterfeiting was developed by Japan and the United States in 2006.[6] The first official round of negotiations took place in Geneva during 3–4 June 2008; at that time, the following countries had joined the negotiations: Australia,[11] the European Union, Jordan, Mexico, Morocco, New Zealand, Republic of Korea, Singapore and United Arab Emirates.[12] The second round of negotiations took place in Washington, DC, from 29 to 31 July 2008.[13] The third round of negotiations was held in Tokyo on 8–9 October 2008.[14] The following month, the European Commission stated that "There is, at this stage, no agreed text."[1]

The fourth round of negotiations took place in Paris from 15–18 December 2008.[15] The fifth round was hosted by the Kingdom of Morocco in Rabat on 16–17 July 2009. Participants in the negotiations included Australia, Canada, the European Union (represented by the European Commission, the EU Presidency (Sweden) and EU Member States), Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the USA.[16] The discussions at the meeting focused on international cooperation, enforcement practices and institutional issues. Transparency was also discussed, including providing information to stakeholders and the interested public. Participants agreed to release draft agendas before all subsequent negotiation rounds.[16] The sixth round of the ACTA negotiations was hosted by the Republic of Korea in Seoul on 4–6 November 2009. Participants in these negotiations included Australia, Canada, the European Union, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States of America. Discussions focused on enforcement in the digital environment and criminal enforcement.[17] The seventh round of negotiations took place on 26–29 January 2010 in Guadalajara, Mexico. Participants were the same as the 6th round.[18]

The eighth round of negotiations took place from 12–16 April 2010 in Wellington, New Zealand. Topics on the agenda were border measures, enforcement procedures in the digital environment, criminal enforcement, civil enforcement, and transparency.[8] Confidential documents were leaked the previous March which indicated the agenda and venue, which the organisers had attempted to keep secret. Day one and two of the negotiations covered border measures and “enforcement procedures in the digital environment”, including infringement of copyright on the Internet. Criminal measures and civil enforcement were discussed on day three and four. On the last day of negotiation the issue of greater transparency was discussed. Before the start of the negotiation round New Zealand reportedly pushed for greater transparency, the European Union reportedly favoured greater transparency and the US strongly opposed the publication of the draft ACTA agreement.[19] To coincide with the negotiation round InternetNZ, a non-profit organisation, held a PublicACTA event on the 10 April 2010 to discuss the known and likely content of the ACTA draft agreement and to develop a statement on ACTA.[20] At the event, the Wellington Declaration was developed by over 100 participants, and was published the following day along with a petition for its endorsement. By 13 April, it had received 6,645 signatures. The Wellington Declaration and the petition was given to the Government of New Zealand, which delivered the Declaration to the other negotiating countries.[21] On 16 April the negotiating countries issued a joint statement that they had reached unanimous agreement to make the consolidated text, as established at that round of negotiation, available to the public by 21 April. It was also decided to not release individual negotiating positions of countries.[22] The official current draft text was published on 20 April 2010.[8]

The ninth round of negotiations was in Lucerne, Switzerland from 28 June to 1 July 2010.[23]

EU position

The European Union is represented in the negotiations by the European Commission, the EU Presidency and EU Member States.[22]

A draft Report from 26 August 2008 by the European Commission tried to establish a mandate from the European Parliament for the negotiation of ACTA.[24] On 25 September 2008 the Council of the European Union adopted a resolution in support of ACTA.[25] In November 2008 the European Commission describes ACTA as an attempt to enforce intellectual property rights and states that countries involved in the negotiations see intellectual property rights as "a key instrument for their development and innovation policies". It argues:

The proliferation of intellectual property rights (IPR) infringements poses an ever-increasing threat to the sustainable development of the world economy. It is a problem with serious economic and social consequences. Today, we face a number of new challenges: the increase of dangerous counterfeit goods (pharmaceuticals, food and drink, cosmetics or toys, car parts); the speed and ease of digital reproduction; the growing importance of the Internet as a means of distribution; and the sophistication and resources of international counterfeiters. All these factors have made the problem more pervasive and harder to tackle.[1]

In March 2010 a leaked draft negotiation text showed that the European Commission has proposed language in ACTA to require criminal penalties for "inciting, aiding and abetting" certain offenses, including "at least in cases of wilful trademark counterfeiting and copyright or related rights piracy on a commercial scale."[26] In a report published on the 11 March 2009 the European Parliament called on the European Commission to "immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available".[27]

The European Parliament resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations states that "according to documents leaked, the ACTA negotiations touch on, among other things, pending EU legislation regarding the enforcement of IPRs (COD/2005/0127 – Criminal measures aimed at assuring the enforcement of intellectual property rights (IPRED-II)) and the so-called "Telecoms Package" and on existing EU legislation regarding e-commerce and data protection." The resolution furthermore stats that "whereas the ongoing EU efforts to harmonise IPR enforcement measures should not be circumvented by trade negotiations which are outside the scope of normal EU decision-making processes." And that the enforcement of intellectual property rights (IPRs), including patent, trademark and copyright law, must be "accomplished in a manner that does not impede innovation or competition, undermine IPR limitations and personal data protection, restrict the free flow of information or unduly burden legitimate trade."[27]

The resolution calls for the European Commission and the European Council to "grant public and parliamentary access to ACTA negotiation texts and summaries, in accordance with" the Lisbon Treaty and "Regulation 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents." In the resolution the European Parliament "deplores the calculated choice of the parties not to negotiate through well-established international bodies, such as WIPO and WTO, which have established frameworks for public information and consultation". The European Parliament asserts that under the Lisbon Treaty the European Commission needs to provide "immediate and full information" to the European Parliament on international treaties, such as ACTA. The resolution also "stresses that, unless Parliament is immediately and fully informed at all stages of the negotiations, it reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives".[27]

Corporate advice through USTR

While negotiations are secret, a number of corporations are part of advisory committees of the Office of the United States Trade Representative (USTR) and have access to classified documents.[28][29] In September 2009 it became known that the USTR has made the text of the ACTA draft agreement selectively available outside the formal advisory board system using nondisclosure agreements. A Freedom of Information (FOIA) request established that the following companies had signed such a nondisclosure agreement with USTR: Google, eBay, Dell, the Business Software Alliance, News Corporation, Sony Pictures, Time Warner, the Motion Picture Association of America and Verizon.[30] The USTR has invited a number of industry groups composed of traditional large intellectual property based corporations to give input and suggestions during the drafting of ACTA. These groups include the International Intellectual Property Alliance[31] (which includes the Business Software Alliance (BSA), Motion Picture Association of America (MPAA or MPA), and Recording Industry Association of America (RIAA))[32] and Pharmaceutical Research and Manufacturers of America.[33] The Recording Industry Association of America (RIAA) supports the agreement, and has given input and suggestions to the creation of ACTA.[32]

Notable leaks

The negotiations for the ACTA treaty were conducted behind closed doors until a series of leaked documents relating to the negotiations emerged.

Discussion paper -- May 2008

On 22 May 2008, a discussion paper about the proposed agreement was uploaded to Wikileaks.[34] According to the discussion paper a clause in the draft agreement would allow governments to shut down websites associated with non-commercial copyright infringement, which was termed "the Pirate Bay killer" in the media.[35] According to the leaked discussion paper the draft agreement would also set up an international agency that could force Internet Service Providers (ISPs) to provide information about subscribers suspected of copyright infringers without a warrant.[35]

In reaction to the leaks, the European Commission issued a statement in November 2008, stating:

The negotiations are still ongoing. This means that there is no agreement yet, and that, at the time of writing this fact sheet, there is not even a draft text on which negotiating parties converge. A number of "texts", wrongly presented as draft ACTA agreements have been circulated on the web. At a preliminary stage of the discussions about the idea of a future ACTA, some of the negotiating parties have submitted concept papers, to present their initial views of the project to other partners. Some of these concept papers have been circulated on the net or commented in the press and presented as "draft ACTA texts or negotiating guidelines", which they are not.[1]

Institutional arrangements, Canadian proposal June 2008

In a confidential draft Canada proposed the creation of an international organization for ACTA oversight. The proposed name is ACTA Oversight Council and its functions would include:

  • supervising ACTA implementation (and also considering amendments, interpretations, and modifications)
  • establishing and delegating responsibilities to ad hoc working groups
  • assisting with resolving any disputes that may arise regarding the interpretation of application of ACTA
  • ensuring that ACTA avoids duplication of other international efforts regarding IP enforcement
  • seeking input from non-governmental persons or groups, particularly with respect to best practices in the field of intellectual property enforcement
  • endorsing best practice guidelines for implementing ACTA
  • supporting the efforts of international organizations active in the field of intellectual property enforcement
  • assisting non-Party governments with developing assessments of the benefits of accession to ACTA; and
  • adopting its own rules of procedure.[36]

Main chapters -- February 2009

Details published in February 2009 indicate that the ACTA has six main chapters. Most discussion to date is focused on the "Enforcement of Intellectual Property Rights" (IPR) chapter 2, which has four sections:[4]

  1. Initial Provisions and Definitions
  2. Enforcement of IPR
    1. Civil Enforcement
    2. Border Measures
    3. Criminal Enforcement
    4. Intellectual Property Rights Enforcement in the Digital Environment
  3. International Cooperation
  4. Enforcement Practices
  5. Institutional Arrangements
  6. Final Provisions

Consolidated text -- March 2010

On 23 March 2010, the entire "January 18th 2010 consolidated text" of sections 2.1 and 2.4 (Civil Enforcement, and Special Measures Related To Technological Enforcement Means And The Internet) along with the demands of each negotiator.[37][38] This was immediately called the "biggest ever" ACTA leak.[39]

Latest consolidated text -- July 2010

The full consolidated text of the proposed ACTA, dated 1 July 2010,[40] comes apparently from the civil liberties committee (LIBE) of the European Parliament.

It provides the full text from the Luzern round of negotiations, including the name of the negotiating parties along with their positions.

Border searches

Potential border searches are covered by the "Border Measures" proposal of ACTA. As of February 2009, and according to University of Ottawa law professor Michael Geist, there is significant disagreement among countries on this topic: "Some countries are seeking the minimum rules, the removal of certain clauses, and a specific provision to put to rest fears of iPod searching customs officials by excluding personal baggage that contains goods of a non-commercial nature. The U.S. is pushing for broad provisions that cover import, export, and in-transit shipments."[41] Newspapers reported that the draft agreement would empower security officials at airports and other international borders to conduct random ex officio searches of laptops, MP3 players, and cellular phones for illegally downloaded or "ripped" music and movies. Travellers with infringing content would be subject to a fine and may have their devices confiscated or destroyed.[3][42]

In July 2008, the United States Department of Homeland Security disclosed that its border search policies allow U.S. Customs and Border Protection agents to conduct random searches of electronic devices for "information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws."[43][44] US Senator Russell Feingold called the policies "truly alarming" and proposed to introduce legislation to require reasonable suspicion of illegality and to prohibit racial profiling.[43] The Ninth Circuit Court of Appeals has previously upheld the constitutionality of laptop searches without reasonable suspicion at border crossings.[43]

An ACTA fact sheet updated in November 2008, published by the European Commission, states:

ACTA is not designed to negatively affect consumers: the EU legislation (2003 Customs Regulation) has a de minimis clause that exempts travellers from checks if the infringing goods are not part of large scale traffic. EU customs, frequently confronted with traffics of drugs, weapons or people, do neither have the time nor the legal basis to look for a couple of pirated songs on an i-Pod music player or laptop computer, and there is no intention to change this.[1]

G8 position

Published in July 2008, paragraph 17 of the G8 Leaders' Communiqué on the World Economy (G8 Hokkaido Toyako Summit) states, under the heading "Protection of Intellectual Property Rights (IPR)", that:

Effective promotion and protection of IPR are critical to the development of creative products, technologies and economies. We will advance existing anti-counterfeiting and piracy initiatives through, inter alia, promoting information exchange systems amongst our authorities, as well as developing non-binding Standards to be Employed by Customs for Uniform Rights Enforcement (SECURE) at the World Customs Organization. We encourage the acceleration of negotiations to establish a new international legal framework, the Anti-Counterfeiting Trade Agreement (ACTA), and seek to complete the negotiation by the end of this year. We will promote practical cooperation between our countries to develop tools to combat new techniques in counterfeiting and piracy and spread best practices. We reaffirm our commitment on government use of software in full compliance with the relevant international agreements and call on other countries to follow our commitment.[2]

Criticism

Secrecy of negotiations

The Electronic Frontier Foundation (EFF) opposes ACTA, calling for more public spotlight on the proposed treaty.[45] Since May 2008 discussion papers and other documents relating to the negotiation of ACTA have been uploaded to Wikileaks,[34] and newspaper reports about the secret negotiations swiftly followed.[3][42][46]

In June 2008 Canadian academic Michael Geist writing for Copyright News argued that "Government Should Lift Veil on ACTA Secrecy" noting before documents leaked on the internet ACTA was shrouded in secrecy. Coverage of the documents by the Toronto Star "sparked widespread opposition as Canadians worry about the prospect of a trade deal that could lead to invasive searches of personal computers and increased surveillance of online activities." Geist argues that public disclosure of the draft ACTA treaty "might put an end to fears about iPod searching border guards" and that it "could focus attention on other key concerns including greater Internet service provider filtering of content, heightened liability for websites that link to allegedly infringing content, and diminished privacy for Internet users." Geist also argues that greater transparency would lead to a more inclusive process, highlighting that the ACTA negotiations have excluded both civil society groups as well as developing countries. Geist reports that "reports suggest that trade negotiators have been required to sign non-disclosure agreements for fear of word of the treaty's provisions leaking to the public." He argues that there is a need for "cooperation from all stakeholders to battle counterfeiting concerns" and that "an effective strategy requires broader participation and regular mechanisms for feedback".[47]

In November 2008 the European Commission responded to these allegations as follows:

It is alleged that the negotiations are undertaken under a veil of secrecy. This is not correct. For reasons of efficiency, it is only natural that intergovernmental negotiations dealing with issues that have an economic impact, do not take place in public and that negotiators are bound by a certain level of discretion. However, there has never been any intention to hide the fact that negotiations took place, or to conceal the ultimate objectives of the negotiations, the positions taken in European Commission Trade 5/6 the negotiations or even details on when and where these negotiations are taking place. The EU and other partners (US, Japan, Canada, etc.) announced their intention to start negotiations of ACTA on 23 October 2007, in well publicised press releases. Since then we have talked about ACTA on dozens of occasions, including at the European Parliament (INTA committee meetings), and in numerous well attended seminars. Commission organised a stakeholders' consultation meeting on 23 June in Brussels, open to all – industry and citizens and attended by more than 100 participants. US, Australia, Canada, New Zealand and other ACTA partners did the same.[1]

Threats to Freedom and Fundamental Human Rights

An open letter signed by many organizations, including Consumers International, EDRi (27 European civil rights and privacy NGOs), the Free Software Foundation (FSF), the Electronic Frontier Foundation (EFF), ASIC (French trade association for web 2.0 companies), and the Free Knowledge Institute (FKI), states that "the current draft of ACTA would profoundly restrict the fundamental rights and freedoms of European citizens, most notably the freedom of expression and communication privacy."[48] The Free Software Foundation argues that ACTA will create a culture of surveillance and suspicion.[49] Aaron Shaw, Research Fellow at the Berkman Center for Internet & Society at Harvard University, argues that "ACTA would create unduly harsh legal standards that do not reflect contemporary principles of democratic government, free market exchange, or civil liberties. Even though the precise terms of ACTA remain undecided, the negotiants' preliminary documents reveal many troubling aspects of the proposed agreement" such as removing "legal safeguards that protect Internet Service Providers from liability for the actions of their subscribers" in effect giving ISPs no option but to comply with privacy invasions. Shaw further says that "[ACTA] would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process".[50]

The Free Software Foundation (FSF) has published "Speak out against ACTA", stating that the ACTA threatens free software by creating a culture "in which the freedom that is required to produce free software is seen as dangerous and threatening rather than creative, innovative, and exciting."[49] ACTA would also require that existing ISP no longer host free software that can access copyrighted media; this would substantially affect many sites that offer free software or host software projects such as SourceForge. Specifically the FSF argues that ACTA will make it more difficult and expensive to distribute free software via file sharing and P2P technologies like BitTorrent, which are currently used to distribute large amounts of free software. The FSF also argues that ACTA will make it harder for users of free operating systems to play non-free media because DRM protected media would not be legally playable with free software.[49]

On 10 March 2010, the European Parliament adopted a resolution[51] criticizing the ACTA with 663 in favor and 13 against, arguing that "in order to respect fundamental rights, such as the right to freedom of expression and the right to privacy" certain changes in the ACTA content and the process should be made.[51]

Nate Anderson with Ars Technica pointed out that ACTA encourages service providers to provide information about suspected infringers by giving them "safe harbor from certain legal threats". Similarly, it provides for criminalization of copyright infringement, granting law enforcement the powers to perform criminal investigation, arrests and pursue criminal citations or prosecution of suspects who may have infringed on copyright. It also allows criminal investigations and invasive searches to be performed against individuals for whom there is no probable cause, and in that regard weakens the presumption of innocence and allows what would in the past have been considered unlawful searches.

Since ACTA is an international treaty, it is an example of policy laundering used to establish and implement legal changes. Policy laundering allows legal provisions—usually administered through public legislation and subject to judiciary oversight—to be pushed through via closed negotiations among members of the executive bodies of the signatories. Once ratified, companies belonging to non-members may be forced to follow the ACTA requirements since they will fall out of the safe harbor protections. Also, the use of trade incentives and the like to persuade other nations to adopt treaties is a standard approach in international relationships. Additional signatories would have to accept ACTA's terms without much scope for negotiation.[52]

From 16–18 June 2010, a conference was held at the Washington College of Law, attended by "over 90 academics, practitioners and public interest organizations from six continents".[53] Their conclusions were published on 23 June 2010 on the American University Washington College of Law website. They found "that the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators."

Requests for disclosure

In September 2008 a number of interest groups urged parties to the ACTA negotiations to disclose the language of the evolving agreement. In an open letter the groups argued that: "Because the text of the treaty and relevant discussion documents remain secret, the public has no way of assessing whether and to what extent these and related concerns are merited." The interest groups included: the Consumers Union, the Electronic Frontier Foundation, Essential Action, IP Justice, Knowledge Ecology International, Public Knowledge, Global Trade Watch, the US Public Interest Research Group, IP Left (Korea), the Canadian Library Association, the Consumers Union of Japan, the National Consumer Council (UK) and the Doctors without Borders' Campaign for Essential Medicines.[54] The Electronic Frontier Foundation (EFF) and Public Knowledge have filed a FOIA request which was denied.[2][55]

Australia

A coalition of concerned organisations submitted to the responsible Australian Government department, the Department of Foreign Affairs and Trade.[56]

The submission agreed that reducing counterfeiting is important where it endangers consumer health or safety, or constitutes commercial scale infringement. However, the coalition urged that pursuit of that goal should not threaten legitimate commercial, social, innovative and creative activities, the rights of consumers or the free flow of information. The coalition noted the current proposed treaty raised serious concerns with respect to transparency, increased customs search powers, increased penalties for IP infringement, and lack of due process.

The coalition consisted of:

  • the Australian Digital Alliance – a public interest copyright organisation advocating for an appropriately balanced copyright regime;
  • the Australian Library and Information Association – the peak professional organisation for the Australian library and information services sector;
  • Choice – a not-for-profit consumer organisation that campaigns on behalf of Australian consumers; and
  • the Internet Industry Association – Australia's national Internet industry organisation that provides policy input to government and advocacy on a range of issues.

Canada

The University of Ottawa's Canadian Internet Policy and Public Interest Clinic filed an access to information request but received only a document stating the title of the agreement, with everything else blacked out.[3]

European Union

In November 2008, the Foundation for a Free Information Infrastructure (FFII) requested secret Anti-Counterfeiting Trade Agreement (ACTA) documents from the EU Council, specifically naming 12 documents to be published.[57] The request was denied by the EU council, stating that "disclosure of this information could impede the proper conduct of the negotiations, would weaken the position of the European Union in these negotiations and might affect relations with the third parties concerned".[58] In March 2009, the European Parliament passed a resolution demanding greater transparency in public affairs, which among other things called on the European Commission to make public all documents relating to the negotiations.[59]

New Zealand

In August 2009 a coalition[60] of NGOs and individuals formed to request more transparency in ACTA negotiations. At briefings held by the Ministry of Economic Development (MED) and the Ministry of Foreign Affairs and Trade (MFAT) on 16 December 2009, representatives from the coalition organisations supported the New Zealand negotiators stated desire to call for more transparency. In December 2009 two New Zealand members of Parliament, Clare Curran (Labour) and Peter Dunne (United Future) also publicly questioned the need for secrecy.[61][62]

In March 2010, TechLiberty, a NZ digital civil rights organisation, received a response to its Official Information Act request on ACTA.[63] It was given letters from MED and MFAT plus the May 2008 cabinet paper[64] in which the NZ government agreed to participate in ACTA. Portions of the cabinet paper, and answers to questions posed by TechLiberty, were withheld including the venue for the April 2010 ACTA negotiations, the cabinet discussion paper on participation in ACTA, and all copies of draft negotiation texts, and all documents expressing NZ's negotiating position. This information was withheld under Official Information Act provisions allowing for withholding of information where it would prejudice the international relations of the Government of New Zealand, where it would affect the privacy of natural persons, where it was required to maintain the effective conduct of public affairs, and where withholding information was required to enable the government to carry on negotiations (including commercial and industrial negotiations).

In the months before the 8th round of ACTA negotiations took place in April 2010, the Government of New Zealand briefed media that they are now championing greater transparency in the negotiation.[19]

United States

Both the Obama administration and the Bush administration had rejected requests to make the text of ACTA public, with the White House saying that disclosure would cause "damage to the national security."[65] In 2009, Knowledge Ecology International filed a FOIA request in the United States, but their entire request was denied. The Office of the United States Trade Representative's Freedom of Information office stated the request was withheld for being material "properly classified in the interest of national security."[66] US Senators Bernie Sanders (I-VT) and Sherrod Brown (D-OH) penned a letter on 23 November 2009, asking the United States Trade Representative to make the text of the ACTA public.[67]

See also

References

  1. ^ a b c d e f g h i j "Fact Sheet: Anti-Counterfeiting Trade Agreement" (PDF). European Commission. 23 October 2007 (Updated November 2008). Retrieved 27 November 2009. {{cite web}}: Check date values in: |date= (help)
  2. ^ a b c d e f Ministry of Economic Development of New Zealand (2008). "On Anti-Counterfeiting Trade Agreement".
  3. ^ a b c d e Pilieci, Vito (2008-05-26). "Copyright deal could toughen rules governing info on iPods, computers". Vancouver Sun. Retrieved 2008-05-27.
  4. ^ a b c d USTR, The Anti-Counterfeiting Trade Agreement – Summary of Key Elements Under Discussion (PDF), retrieved 25 November 2009
  5. ^ a b Anti-Counterfeiting Trade Agreement Consolidated Text PUBLIC Predecisional/Deliberative Draft: April 2010 Prepared for Public Release EC.europa.eu
  6. ^ a b c d e f g "The Anti-Counterfeiting Trade Agreement – Summary of Key Elements Under Discussion" (pdf). transparency paper. Swiss federation of Intellectual Property. Status November 2009. Retrieved 8 June 2010. {{cite web}}: Check date values in: |date= (help)
  7. ^ "2008 SPECIAL 301 REPORT" (PDF). Office of the United States Trade Representative. 2008. p. 4. Retrieved 12 June 2010.
  8. ^ a b c "Negotiations on an Anti-Counterfeiting and Trade Agreement (ACTA)". Swiss Federation for Intellectual Property. 25 May 2010. Retrieved 8 June 2010.
  9. ^ Katz, Eddan; Hinze, Gwen (2009), "The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy: The Accountability of the Office of the U.S. Trade Representative for the Creation of IP Enforcement Norms Through Executive Trade Agreements" (PDF), The Yale Journal of International Law, retrieved November 24 2009 {{citation}}: Check date values in: |accessdate= (help); Unknown parameter |month= ignored (help)
  10. ^ Lynn, Jonathan (9 June 2010). "States clash over anti-counterfeiting enforcement". Reuters. Retrieved 12 June 2010.
  11. ^ Australia announced it would join negotiations on 1 February 2008, see the Press release by Simon Crean, Australian Minister for Trade
  12. ^ "EU, US and others hold Geneva talks on Anti-Counterfeiting Trade Agreement" (PDF). European Commission. 5 June 2008. Retrieved 26 November 2009.
  13. ^ "EU/NR 75/08: Anti-Counterfeiting: EU, US and others meet in Washington to advance ACTA". European Commission. 31 July 2008. Retrieved 26 November 2009.
  14. ^ "Anti-counterfeiting: Participants meet in Tokyo to discuss ACTA" (PDF). Tokyo: European Commission. 9 October 2008. Retrieved 26 November 2009.
  15. ^ "ACTA: 4th round of negotiation" (PDF). European Commission. 18 December 2008. Retrieved 26 November 2009.
  16. ^ a b ACTA 5th Round of negotiation: press statement, 21 July 2009.
  17. ^ Swedish Government Offices (6 November 2009). "The 6th Round of Negotiations on Anti-Counterfeiting Trade Agreement". Retrieved 8 November 2009.
  18. ^ Michael Geist (6 February 2010). "European ACTA Document Leaks With New Details on Mexico Talks and Future Meetings". Retrieved 19 February 2010.
  19. ^ a b Computerworld (2010-22-3). "ACTA Wellington agenda and venue leaked". Computerworld. Retrieved 2010-04-04. {{cite web}}: Check date values in: |date= (help)
  20. ^ "InternetNZ launches petition to limit ACTA". National Business Review. April 12, 2010. Retrieved 27 June 2010.
  21. ^ "The Wellington Declaration". Retrieved 2010-04-16.
  22. ^ a b "Joint Statement on Anti-Counterfeiting Trade Agreement (ACTA)". Press release. 16 April 2010. Retrieved 2010-04-17.
  23. ^ "Outcome of Proceedings" (pdf). Trade Policy Committee (Deputies). The Council of the European Union. 27 April 2010. Retrieved 13 June 2010.
  24. ^ Gianluca Susta (26 August 2008). "Draft Report on the impact of counterfeiting on international trade". European Parliament's Committee on International Trade.
  25. ^ Presidency of the Council (25 September 2008). "Council Resolution on a comprehensive European anti-counterfeiting plan" (pdf). Council.
  26. ^ "EU proposes ACTA require criminal sanctions for inciting, aiding and abetting infringements". Knowledge Ecology International (KEI). 17 March 2010. Retrieved 19 March 2010.
  27. ^ a b c "European Parliament resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations". Resolution. European Parliament. 10 March 2010. Retrieved 13 June 2010.
  28. ^ Who are the cleared advisors that have access to secret ACTA documents?
  29. ^ USTR Advisory Committess
  30. ^ Grant, Ian (4 November 2009). "ACTA talks focus on three strikes, no appeal deal for software pirates". ComputerWeekly.com. Retrieved 12 June 2010.
  31. ^ About IIPA
  32. ^ a b Anderson, Nate (2008-06-30). "RIAA's ACTA wishlist includes gutted DMCA, mandatory filters". Ars Technica. Retrieved 2008-07-02.
  33. ^ PhRMA (March 21, 2008). "PhRMA comments to USTR on ACTA".
  34. ^ a b "Proposed US ACTA multi-lateral intellectual property trade agreement (2007)". Wikileaks. 22 May 2008.
  35. ^ ACTA: Non-Paper on institutional issues under the Agreement (PDF), 9 June 2008 {{citation}}: Unknown parameter |address= ignored (|location= suggested) (help)
  36. ^ "ACTA-6437-10.pdf (as text)".
  37. ^ "New ACTA leak: 01/18 version of consolidated text." La Quadrature du Net. 23 March 2010.
  38. ^ "Biggest-ever ACTA leak: secret copyright treaty dirty laundry motherlode".
  39. ^ [1]
  40. ^ Geist, Michael (3 February 2009). "Putting Together the ACTA Puzzle: Privacy, P2P Major Targets". Retrieved 26 November 2009.
  41. ^ a b Weeks, Carly (2008-05-26). "Anti-piracy strategy will help government to spy, critic says". The Globe and Mail. Retrieved 2008-05-27.
  42. ^ a b c Nakashima, Ellen (2008-08-01). "Travelers' Laptops May Be Detained At Border". Washington Post. Retrieved 2008-08-01.
  43. ^ "Policy Regarding Border Search of Information" (PDF). U.S. Customs and Border Protection. 2008-07-16. Retrieved 2008-08-01.
  44. ^ "Sunlight for ACTA". EFF. Retrieved 2008-07-05.
  45. ^ Jason Mick (23 May 2008). "Wikileaks Airs U.S. Plans to Kill Pirate Bay, Monitor ISPs With Multinational ACTA Proposal". DailyTech.
  46. ^ Geist, Michael (9 June 2008). "Government Should Lift Veil on ACTA Secrecy". Retrieved 28 November 2008.
  47. ^ Freeknowledge.eu
  48. ^ a b c "Speak out against ACTA". Free Software Foundation.
  49. ^ Shaw, Aaron (2009). "The Problem with the Anti-Counterfeiting Trade Agreement (and what to do about it)". KEStudies. 2. {{cite journal}}: Unknown parameter |month= ignored (help)
  50. ^ a b http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2010-0058&language=EN&ring=P7-RC-2010-0154
  51. ^ Anderson, Nate (2008-06-02). "The real ACTA threat (it's not iPod-scanning border guards)". Ars Technica. Retrieved 2008-06-14.
  52. ^ Text of Urgent ACTA Communique — English, Portuguese, French, Korean, Spanish.
  53. ^ "Anti-Counterfeiting Trade Agreement: Fact or Fiction?". Wired.com. 15 September 2008.
  54. ^ "What is ACTA?". Electronic Frontier Foundation (EFF). Retrieved 1 December 2008.
  55. ^ "Principles for ACTA negotiations" (PDF).
  56. ^ FFII Press Release from 3 November 2008 FFII opposes stealth legislation, demands ACTA documents
  57. ^ FFII Press Release from 10 November 2008 EU Council refuses to release secret ACTA documents
  58. ^ Summary of European Parliament resolution calling on European Commission to release ACTA details
  59. ^ acta.net.nz (2010-20-3). "acta.net.nz coalition". Retrieved 2010-20-3. {{cite web}}: Check date values in: |accessdate= and |date= (help)
  60. ^ Clare Curran (2009-04-12). "What's the need for Secrecy?". Labour. Retrieved 2009-04-12.
  61. ^ Peter Dunne (2009-04-12). "Dunne: What are we signing up to, Mr Power?". United Future. Retrieved 2009-04-12.
  62. ^ Thomas Beagle (2010-03-17). "TechLiberty's Official Information Act request on ACTA". TechLiberty. Retrieved 2010-03-17.
  63. ^ MED (2008-07-05). "NZ's MED 2008 Cabinet paper on ACTA" (PDF). TechLiberty. Retrieved 2010-21-3. {{cite web}}: Check date values in: |accessdate= (help)
  64. ^ CNET.com
  65. ^ James Love (2009-03-12). "Obama Administration Rules Texts of New IPR Agreement are State Secrets". The Huffington Post. Retrieved 2009-03-12.
  66. ^ US Senators Sanders and Brown (23 November 2008). "Letter To The United States Trade Representative" (PDF). Senators Sanders and Brown.

Official ACTA sites

Other sites

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