ACTA Concerns Unaddressed on Eve of Meeting

Sean Flynn
August 12, 2010

Our legal fellow, Jimmy Koo, has just posted a note identifying some of the major changes at the Lucerne negotiation as well as some major points of contention between the US and EU that are likely to figure in the talks next week. 

His note indicates that, for example, the new text adds verbatim references to the balancing features in TRIPS Articles 7, 8.1, and 8.2, promoting transfer of technology, protecting public health and nutrition, and preventing abuse of intellectual property rights. But it still fails to reflect the full range of flexibilities, balancing features and protections from abuse called for in the June Experts' Communique. The Communiqué, signed by hundreds of IP experts and advocacy organizations, called for ACTA to

"fully protect and incorporate key protections against abuse (e.g. Articles 41.1, 48.1, 48.2, 50.3, 53.1, 56), flexibilities to promote public interests (e.g. TRIPS Art. 44.2), requirements for the proportionality of enforcement measures (e.g. Arts. 46, 47), and provisions providing for balance between the interests of proprietors, consumers and the greater society (e.g. TRIPS Arts. 1, 7, 8, 40, 41.2, 41.5, 54, 55, 58)."

The July text fails to do so.       

The major point of disagreement that will likely be the subject of next week's negotiations is on the scope of IP covered by the agreement. The U.S. proposes limiting the scope of ACTA to "copyrights, related rights, and trademarks." Although this is narrower than the EU's continued insistence on applying the agreement to every "intellectual property right," the US formulation is still far broader than the original focus of the agreement (two years ago) on the problems of criminal trademark counterfeiting (i.e. willfully duplicating a label to intentionally deceive customers) and commercial scale copyright infringement. Both the EU and US appear dedicated to requiring border seizures and draconian penalties for incidental and unintentional infringement of the kind that occurs commonly on the internet or in general trade. And the agreement still proposes to do so at the border and in other forums with little or no due process protections. Goods will be seized and expression suppressed without any requirement for court hearings to protect property and other fundamental rights.

There is now a provision stating that countries should not require online service providers to actively monitor its services or to actively seek infringing activities. But the agreement would still promote such activities through its ISP liability and safeharbor provisions.

The leaked text indicates that none of the major issues highlighted the Experts' Communiqué have been sufficiently addressed. In their July statement accompanying their refusal to release text following the Lucerne negotiation, the negotiators repeated their claims from their April press release that ACTA would not harm major public interests. The communiqué's refutation of these claims appear as applicable now as they were in June:

  • Negotiators claim ACTA will not interfere with citizens' fundamental rights and liberties; it will.
  • They claim ACTA is consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS); it is not.
  • They claim ACTA will not increase border searches or interfere with cross-border transit of legitimate generic medicines; it will.
  • And they claim that ACTA does not require "graduated response" disconnections of people from the internet; however, the agreement strongly encourages such policies.


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