KEI comment on US signing of ACTA

Today USTR was pointing to four documents to explain the U.S. decision to sign the Anti-Counterfeiting Trade Agreement. While it was not surprising that the United States signed the agreement, KEI was disappointed that the statements did not address the issue of the inconsistencies between US law and the ACTA, or make any commitments that the ACTA Committee would operate in an open, transparent and inclusive manner.

These are the USTR documents:

  • Joint Press Statement of the Anti-Counterfeiting Trade Agreement Negotiating Parties
  • Press Release: Partners Sign Groundbreaking Anti-Counterfeiting Trade Agreement: Agreement will protect American jobs in innovative and creative industries
  • USTR views on ACTA: ACTA: Meeting U.S. Objectives
  • USTR Fact Sheet on ACTA: The Anti-Counterfeiting Trade Agreement: Fighting Piracy and Counterfeiting, Supporting American Jobs

KEI has frequently pointed to elements of ACTA that are inconsistent with US law. The Final text of ACTA fixed many of these issues, for example, by allowing a country to opt-out of having patents or pharmaceutical test data in the civil enforcement provisions in ACTA, and by providing more latitude for liability rules in Article 8.2 of ACTA. That said, inconsistencies remain. For example, KEI has identified a number of areas where ACTA requires injunctions or aggressive damage norms, and U.S. statutes say something different. (http://www.keionline.org/node/1289)

These issues were explored earlier in an October 29, 2010 report written by Brian T. Yeh, Legislative Attorney for the American Law Division of the Congressional Research Service (CRS)., The title of the CRS report was: Potential Implications for Federal Law Raised by the October 2010 Draft of the Anti-Counterfeiting Trade Agreement (ACTA). Not all of the report was released. The available parts of the Yeh report and some commentary is available here: http://keionline.org/node/1123

As discussed by Yeh in the CRS report, the claim that ACTA is consistent with US law relies in part upon assertions of the flexibility available to members when implementing various ACTA obligations, a topic that Stan McCoy and others in USTR had spoken about in numerous oral briefings.

KEI was led to believe that USTR had agreed to address these issue in writing. Apparently that did not happen. It may be that USTR is now asserting ACTA is consistent with US law because it is pushing even less nuanced positions in the TPPA, including the extension of the enforcement norms to patents.

If Congress winks at this, and applauds the agreement, it shows that the integrity of the trade agreements is as low a priority in Congress as it is in the White House.

What the White House has done is negotiate and sign an agreement of uncertain legal status, that ignores U.S. legal traditions in several areas, despite numerous efforts by NGOs and governments in the ACTA negotiations to provide greater legal certainty for exceptions to enforcement obligations.

In addition to ignoring exceptions in existing U.S. law on damages and injunctions, USTR has consistently been hostile to language in the ACTA that would address the ability of the U.S. Congress to modify U.S. laws on damages and injunctions, to expand access to orphaned copyrighted works.

As noted above, KEI is disappointed that USTR rejected numerous requests that it promise that the new ACTA Committee operate in an open, transparent and inclusive manner. That would be have been easy to do, and the failure to accommodate civil society concerns in this regard are noted, and add more insult to the secretive and anti-consumer nature of the whole ACTA initiative.