Legal Experts Analyze Controversial U.S. Intellectual Property Treaty Released Wednesday: Concerns Still Loom

Thursday, April 22, 2010

CONTACT: Sean Flynn, Associate Director
Program on Information Justice and Intellectual Property (PIJIP),
American University Washington College of Law
Tel: 202-294-5749/E-mail:
Zinnia Faruque, Communications Fellow
917-538-2455 (c).

WASHINGTON, D.C. – The European Commission released on Wednesday the first public draft of a controversial intellectual property treaty that legal experts still fear could radically change the way content on the Internet is distributed.

Known as the Anti-Counterfeiting Trade Agreement (ACTA), the U.S. has been negotiating the proposed treaty with several other countries, including the E.C., Japan, and Canada, with unusual secrecy. Both the Bush and Obama administrations had previously refused to disclose information about the treaty on the grounds of national security. Prior to the release on Wednesday, most of the information that the public had about ACTA was pieced together by leaked documents. The release is seen as a move by the countries to appear more transparent about their negotiations and to alleviate concerns raised by public interest groups and Internet content providers.

Despite the release, however, “many of the most controversial provisions of the treaty remain the same,” said Sean Flynn, a professor at the American University Washington College of Law. Flynn is the associate director of the law school’s Program on Information Justice and Intellectual Property, which has teamed up with other public interest groups and research institutions to study the potential impacts of ACTA.

Meanwhile, the statement by the European Commission that accompanied the release of the treaty stated that: “ACTA will by no means lead to a limitation of civil liberties or to ‘harassment’ of consumers.” It went on to state that concerns raised by these groups are “unfounded.”

Legal experts, including Flynn, disagree. In a preliminary analysis, Flynn points out several areas that are problematic within the ACTA treaty, including issues related to Internet access, privacy, and changes to U.S. law, to name a few.

Although the U.S. has defended the treaty by claiming that it would not impose any changes in domestic law, Flynn pointed out that there are many bracketed sections in the draft that allow the negotiators to go back and change things that they disagree on. Thus, “it is hard to imagine a final version that would not require amendments to U.S. law to comply,” said Flynn.

Furthermore, the treaty would export aspects of U.S. copyright and trademark law - that are controversial even within the U.S. – to other countries, he said.

For example, the treaty includes language modeled on a controversial section in the Digital Millenium Copyright Act (DMCA), which was signed into law by President Clinton in 1998. The Act includes an “anti-circumvention” section, which makes it illegal to copy digital media even for uses that are entirely within the user’s rights under copyright law – such as for personal use or for a so-called “fair use” necessary to protect free expression rights. “There is a large amount of concern about this provision in the U.S. – that they eviscerate fair  use rights that are needed by artists, filmmakers and others to exercise their free speech rights,” said Flynn.

ACTA would prevent the case law surrounding copyright to evolve in the future based on the needs of each particular country, including the U.S. “Enacting ACTA would mean that Congress could not change these aspects of law in the future without changing international law at the same time,” said Flynn.

ACTA has also stirred up a lot of controversy because of previously leaked language that suggested that the international treaty would adopt a “gradual response” or “three strikes” approach, in which Internet Service Providers would cut off users from the Internet after they\ received three notices that the users had posted copyright-infringing material. However, in their joint statement on Wednesday, the ACTA negotiators asserted that “no party in the ACTA negotiation is proposing that governments should introduce a compulsory ‘3 strikes’ or ‘gradual response’ rule to fight copyright infringements and internet piracy.”

But as Flynn points out, even though the three-strikes approach is not a requirement, it is not completely off the table either, and its adoption in individual countries could still be encouraged. The bracketed language in the draft treaty suggests making the approach optional, said Flynn.

For more information on ACTA, please see

To download a printable PDF of this press release, please click here.

Permalink :