Notes on the October 7, 2010 USTR NGO briefing on ACTA
Judit Rius Sanjuan & Anne Mira Guha
October 7, 2010
Today, USTR held a nearly 2-hour public briefing on the new version of the ACTA text. USTR representatives present included Stan McCoy, Kira Alvarez, and Rachel Bae. Stan and Kira did most of the talking at the meeting.
From civil society, we were able to identify representatives from the following organizations: Knowledge Ecology International, Doctors Without Borders, Public Citizen, Public Knowledge, CDT, and PIJIP/ American University. In addition, Professor Robert Brauneis of GW Law was present, along with one of his students, a representative from the lobbying firm MFJ International, and lawyers representing copyright retailers and the home recording industry. No one from MPAA, RIAA, the Chamber of Commerce, PhRMA, or other technology companies attended, suggesting this was probably one of several briefings.
USTR opened the meeting by explaining that, at this point, the text of ACTA is essentially complete, and that they are hoping to come to an agreement as to underlined/italicized/highlighted items within the next couple of weeks. USTR recognized that the parts that are currently underlined and highlighted are essentially in brackets; however, they do not anticipate that reaching a consensus will be a problem. USTR representatives said they considered this text to be "good" and "balanced," and felt it reflects balances incorporated in U.S. law. They also said they consider it to be a "landmark agreement" of best practices, and stressed that the parties involved represent over 50% of global trade.
USTR told us that the steps remaining include: final legal review by the parties (fixing comas, article numeration...), signing the agreement, and going through the relevant domestic constitutional processes for ratification in each nation. In the US, since this is an executive agreement, this final step will involve the document being signed by an executive official only.
USTR also said that there had been "extensive congressional consultation" with a number of committees, including House Ways & Means, Senate Finance, Judiciary, and with particular members of congress and/or their staffs. Stan argued that the first announcement about ACTA was made on the Hill 3 years ago.
One of the surprises of the meeting was the USTR response when asked to comment on footnote 2, in which the US is currently proposing that the chapter on civil enforcement not be applied to patents. When asked if the US would sign ACTA if the footnote is not accepted and patents are included in the civil enforcement chapter, Stan McCoy said that they are still consulting on the issue. Although he declined to comment on what actions his political superiors would take, he stressed that they do not see the ACTA text being inconsistent with US law, whether or not footnote 2 is accepted into the final text. Therefore, he suggested that the US might accept the inclusion of patents in the civil enforcement chapter, but was clear that this would be a political decision that others in the Obama Administration would make. Stan and Kira repetitively said that those who wanted patents out of ACTA should talk to the other ACTA parties that want patents included. They stressed that the US saw the scope of this agreement as being appropriately concerned with just the narrow issues of counterfeiting and piracy, but that other parties may have other objectives and preferences.
The main theme of the meeting was the USTR representatives repeatedly stating that they consider the current text of the ACTA agreement to be entirely consistent with US law; however, when presented with specific examples where the text appears inconsistent they failed to provide a very thorough or adequate response. Stan was insistent that lawyers from other agencies had backed up their assertions that nothing in ACTA conflicted with US law.
For example, though NGO representatives congratulated the USTR for the improvements in the injunctions language for cases where remuneration exists, they also also confronted the USTR with examples of US law where judges do not have the discretion to issue injunctions, even when the compensation is zero for an infringement. NGO representatives asked the USTR to explain whether the ACTA language, if passed as written, would have the effect of requiring judges to have the option to issue injunctive relief in all cases, including those where, under US domestic law, their discretion is presently limited to other remedies (for example, there are limitations on injunctions and damages in the health care reform bill provisions on undisclosed patents on biologic drugs, as well as in cases involving infringements by surgeons). In response to this concern, Stan stated simply that US government lawyers do not see a contradiction between the ACTA text and current US law.
As to provisions on damages and their arguable contradiction with the current US patent reform legislation or with proposals for orphan copyright legislation, Stan again emphasized that the USTR position (and the position of the DOJ, the State Dept, and the Copyright Office) is that the ACTA text is inconsistent neither with US law, nor with these proposals for new legislation; Stan did not, however, offer clarity as to how this was so, other than to point to Article 1.2.1 ("Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice"), as if this was an all purpose loophole for any exceptions to the substantive obligations in ACTA.
There was an important discussion on article 2.x about scope of border measures. Stan and Kira emphasized that the US position is that this section should be limited to counterfeiting and piracy. There were discussion of how some parties seemed willing to sink the agreement over trying to get broad scope. Stan acknowledged that no matter what text says, clearly parties can discriminate between IP rights. Stan explained that the word "unreasonably" is still in consideration by one of the ACTA parties but that the US supports the present language of "does not discriminate unreasonably between intellectual property rights" because "there are plenty of examples of discrimination within IP law, including in EU law for border measures and plant varieties."
Finally, as to the issues of transparency and participation of civil society and other stakeholders in the operations of the ACTA Committee, the USTR only said that this would be discussed later when the rules of proceedings are set up; the operational day to day would be settled after ACTA entry into force and after the Committee was up-and-running. KEI recommended that some language expressing a commitment to openness and transparency in the operations of the Committee be included in the text of the agreement.