At Department of Commerce Meeting on ACTA, Questions About Limitations and Exceptions

Mike Palmedo
September 23, 2008

The Department of Commerce hosted a public meeting on the Anti-Counterfeiting Trade Agreement (ACTA) on September 22. It was attended by about 75 people from industry, NGOs, and embassies. Stan McCoy from USTR gave a detailed presentation and then answered questions from the audience. One reoccurring theme was that ACTA would raise the minimum standards of enforcement to TRIPS-Plus levels, but it will not include limitations or exceptions to copyright that prevent against overzealous IP enforcement by ACTA signatories.

Jonathan Band (representing internet companies) began the Q&A by noting that US law on IP enforcement is good for a wide range of American companies because it includes important balancing features such as fair use and due process. In order to promote a healthy balance internationally, the US needs to promote elements such as these. McCoy's response was that the US couldn't stop other countries if they want to adopt tougher levels of IP enforcement than found here. TRIPS Article 1 allows WTO Members to adopt tougher standards than the international minimum.

Later, a representative from the Computer and Communications Industry Association asked McCoy specifically if ACTA would include fair use. McCoy answered that fair use falls under a broader international consensus on limitations and exceptions to copyright. The Berne Convention's 'three step test' allows for the US's fair use, but it also allows for other regimes that exist in other countries that rely on more detailed statutory language. According to McCoy, the US government has had internal discussions about exporting US-style fair use provisions, but concluded it would be difficult to do so.

USTR is accepting comments on ACTA until Friday, September 26 at midnight. To send comments, email them to


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