Trans-Atlantic Consumer Dialogue (TACD) Hosts International ACTA Meeting
April 28, 2010
Today the Trans-Atlantic Consumer Dialogue (TACD), a trade advisory board to the United States and the European Commission, hosted a series of roundtable discussions in regard to the recent release of the Anti-Counterfeiting Trade Agreement (ACTA) draft text. The meeting, held in Washington, DC at the United States Department of Commerce, featured a diverse group of panelists, including representatives from universities, European and American public interest groups, and government agencies.
Among the topics discussed was the impact of ACTA on copyrighted goods and on markets for medicine and other patented or trademarked goods and services, the ACTA negotiating process, and the future role of ACTA as an international institution.
During the first roundtable discussion, Peter Yu from Drake University Law School raised 5 points to consider with respect to the current draft of ACTA. Among these were the effects on individuals (including limitations on innovation domestically and legal treatment they will face internationally), the undermining of American interests in promoting civil rights in other countries due to ACTA's facilitation of control of information, the difficulty that the United States will experience in attempting to go back and revise laws, a lock-on effect which assures that a country will create or maintain certain standards if other nations have already added similar provisions, and finally the implications of having back door discussions and what it means to the democratic process.
Professor Yu also commented on graduated response, raising three potential problems. One troubling situation may arise in some rural areas, where broadband is based on only one shared connection. If this single line were to be disconnected, the consequences may be disproportionate. Furthermore, some rural areas rely on a single Internet service provider, so that disconnection as a result of an alleged infringement cannot be remedied by signing up through another service provider, as some proponents have suggested. A second problem arises if for example, a family relies on VOIP, so that the telephone connection (including 911 emergency services) would rely completely on the internet connection. In this case, disconnection of the internet service prevents the owner from communicating with emergency services. Finally, small and mid-size companies which rely on a single connection to share among employees may face disconnection for the entire company, if 2 or 3 employees separately download an infringing file.
A number of panelists discussed intermediary liability and its expression in the current ACTA text. The officially published draft requires ISP liability, a provision yet to be implemented internationally. Mandatory ISP liability does not exist in TRIPS or other international treaties and some nations have no secondary liability doctrine. Among the concerns raised included the export of DMCA liability provisions without effective balancing provisions such as fair use. In the present text, it is a single footnote (Footnote 47) that briefly introduces the option of such balancing provisions.
In addition to American perspectives, concerns from the other side of the Atlantic were also shared by European panelists. Notice and takedown, a procedure commonly utilized in the United States, does not exist in EU law. Its adoption through ACTA would inevitably require a change in EU law. Similarly, as one panelist discussed, there are no criminal sanctions at the present time for copyright infringement in the EU and change in the law would be required if ACTA were to be introduced in its current state.
Professor Susan Sell, from George Washington University, commented on ACTA and forum shifting, explaining that both horizontal (moving from WIPO to WTO to WHO to WIPO and now to ACTA) and vertical shifts have taken place.
For more information on TACD, visit http://www.tacd.org/