What's (still) wrong with ACTA, and why governments should reject the illegitimate agreement

This is a blog about the Anti-Counterfeiting Trade Agreement (ACTA). More information is available here: http://keionline.org/acta

ACTA is an attempt to bypass multilateral institutions

Negotiations on ACTA were formerly announced on October 23, 2007. The ACTA announcement came less than three weeks after the World Intellectual Property Organization (WIPO) adopted the "Development Agenda," and was part of a broader strategy by right holders to move norm setting and technical assistance into more secretive, closed and captured institutions.

The WIPO Development Agenda was a far reaching agreement on reforming the UN specialized agency dealing with intellectual property. The WIPO reform agenda had been underway since 2003. The 2007 agreement promised greater transparency, easier NGO accreditation, a recognition that the impact of intellectual property rights on consumers and innovation are complex, and that policy makers should balance competing interests and objectives, including human rights, the public interest in greater public access to goods and knowledge, the control of anti-competitive practice, and the need to protect the public domain.

The ACTA focused on the enforcement of intellectual property rights, a topic that had been difficult to pursue within the multilateral institutions of WIPO and World Trade Organization (WTO). Many developing countries were struggling to come to into compliance with the new WTO norms for intellectual property and had a paucity of statutory limitations and exceptions to copyright or patent rights. For them, the first priority was to amend domestic laws to provide for reasonable flexibilities, before undertaking greater enforcement efforts.

ACTA was conceived both as a set of binding norms for enforcement, and also as a new institution that would provide the opportunity to create newer binding commitments, establish "best practice" norms, and provide ongoing technical assistance to developing countries, outside of the WIPO framework.

Negotiations were a secret to the general public, while corporations were well informed.

From the beginning, the United States and the European Union sought to negotiate ACTA in secret. The negotiating texts were secret, and so too were the names of the government officials attending negotiating meetings. Even the venues were secret. Only after extensive pressure for more transparency did the ACTA negotiators agree to release even vague meeting agendas.

We are not sure when the negotiators began to mark up the negotiating text, but by early 2008, the US, Japan, Canada and the EU had tabled a series of proposals for the text of various chapters of ACTA. (See: Seven Secret ACTA documents from 2008). Seven of these documents were subject to a FOIA request, which was rejected by the Obama Administration in March 2009, on the grounds that the proposals for the ACTA were national security secrets. (See: http://keionline.org/blogs/2009/03/14/some-news-stories-on-acta-foia). It took a vote of the European Parliament to force the release of a version of the negotiating text in April 2010, and even that was scrubbed to "not identify participants’ positions in respect of square bracketed options." The next version of the text that was released was a November 15, 2010 text, after the negotiations were considered closed.

Access to negotiators was quite limited. At first, the meetings were completely inaccessible. When venues were leaked, negotiators began a practice of inviting NGOs from civil society groups to attend brief meet and greets, but on such sort notice that it was impossible for most people to book inexpensive airline tickets to justify travel budgets, for the chance to meet with delegates. Typically, the public was told 24 to 48 hours in advance that they would have the opportunity to meet with negotiators. In the 9th round of negotiations in Lucerne, NGOs received last minute invites to meet with negotiators, on the same day a major public civil society meeting on ACTA was scheduled to be held in Geneva.

What transparency there was from ACTA was the result of a series of leaks of the ACTA text, including several that occurred in 2010, after the EU Parliament began to receive copies. The leaks were useful, but also quite risky for the persons leaking the text, and their authenticity was questioned by journalists and members of Congress, when we raised objections to specific provisions. USTR and DG-Trade themselves often implied that whatever text we had was not the latest version of the negotiation.

The secrecy surrounding the negotiations was not total, as governments provided copies of the negotiating text to various industry lobby groups. The very first leaked ACTA text was obtained from a lawfirm representing several big corporate right holders. The USTR provided access to the ACTA text to hundreds of persons representing big corporations as "cleared advisers" on trade advisory bodies, and through an ad hoc system of non-disclosure agreements (NDAs).

See, for example:

Developing Countries were excluded from negotiations, even though they are the target of the new norms.

Trade negotiators from the European Commission and USTR make it clear that the ACTA norms were designed to eventually be imposed on developing countries. Despite being the putative target of the new norms, only two developing countries -- Morocco and Mexico -- participated in the negotiations.

On December 4, 1986, the UN adopted a Declaration on the Right to Development (A/RES/41/128). Several Articles in the Declaration emphasized the importance of sovereignty and participation in governance, including, for example:

Article 1.2. The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.

Article 3.3 States have the duty to co-operate with each other in ensuring development and eliminating obstacles to development. States should realize their rights and fulfil their duties in such a manner as to promote a new international economic order based on sovereign equality, interdependence, mutual interest and co-operation among all States, as well as to encourage the observance and realization of human rights.

Article 5. States shall take resolute steps to eliminate the massive and flagrant violations of the human rights of peoples and human beings affected by situations such as those resulting from apartheid, all forms of racism and racial discrimination, colonialism, foreign domination and occupation, aggression, foreign interference and threats against national sovereignty, national unity and territorial integrity, threats of war and refusal to recognize the fundamental right of peoples to self-determination.

Article 8.2. States should encourage popular participation in all spheres as an important factor in development and in the full realization of all human rights.

Judging by countless statements by DG-Trade and USTR officials to their own lawmakers and citizens, ACTA is, by design, a form of foreign domination and a threat against national sovereignty and self-determination, in violation of this UN Declaration on the right to development.

The ACTA norms are restrictive, unfair, and undermine or eliminate flexabilities in intellectual property laws that are needed to protect the public interest.

ACTA is an agreement to change current international rules for the enforcement of intellectual property rights. The changes give holders of intellectual property rights more ways to enforce those rights, increases the damages for those who infringe intellectual property rights, and creates a new institution to both implement the new norms and to change the new norms.

ACTA refers to right holders 42 times, typically to convene more rights on the right holder, at the expense of consumers or users of intellectual property. For example, in the damages section of ACTA, judicial authorities are required to consider "any legitimate measure of value the right holder submits," and not required to consider measures of value put forth by the alleged infringing party. Despite the fact that the term is almost never found in any national statutes, ACTA requires judicial authorities to consider "the suggested retail price" of a good as the value of the injury of the infringement, even though most cases of infringement involve goods that are routinely sold in real market transactions below the suggested retail price, and many infringements involve low valued uses of goods.

ACTA requires that "its judicial authorities or the right holder has the right to choose" the remedy or presumptions of remedies that are most favorable to the right holder. Right holders are given asymmetric rights as regards discovery against real or merely alleged infringers. Provisional measures are granted the when alleged infringements are "likely to cause irreparable harm to the right holder," without requiring consideration of the harm to the alleged infringer. Government can provide for "limitations on the liability of, or on the remedies available against, online service providers," but only "while preserving the legitimate interests of right holder."

ACTA systematically changes the balance between right holders and users now found in the TRIPS agreement, in an agreement that was negotiated with asymmetric secrecy between right holders and consumers. The US negotiating team for ACTA was headed by a former lobbyist for Lilly and Time-Warner, and the chief negotiator for the US copyright office left the government and joined the US Chamber of Commerce, during the last year of the ACTA negotiation, to work on the enforcement of intellectual property rights, on behalf of right holders.

By creating higher norms for damages from infringement, the ACTA makes it more risky for businesses and consumers to undertake activities are may or may not actually constitute infringement. Everyone must become more risk adverse, even when the activity they are engaged in may ultimately be legal.

ACTA provides for inadequate flexibility to create exceptions to general rules. The United States blocked efforts by some countries to create wider flexibility to create statutory exceptions in remedies to infringement, even though US law already has several such exceptions for patents, trademarks, copyright, and other types of intellectual property rights.

ACTA makes it more difficult to implement liability rules, in cases where the public should have more freedom to use protected goods

One special catagory of goods that will be particularly impacted by ACTA are orphaned copyrighted works. ACTA makes it much more difficult to fashion limitations on remedies for infingement, that permit solutions to the orphan works issue to be resolved outside of the TRIPS 3-step test. (See: Access to Orphan Works, and ACTA provisions on damages, KEI Policy Brief 2010:1, 20 October 2010).

The Orphan Works issue is part of a larger area of policy concerning limitations on remedies for infringement. The new ACTA norms on damages and other ACTA provisions on remedies shrink the policy space lawmakers now have to shape more modern intellectual property laws that give the public more freedom to use goods now protected by intellectual property rights. In the area of copyright, this puts a greater emphasis on the TRIPS 3-Step test, which has been interpreted in a highly restrictive manner by right holders and their political allies, and creates barriers to the use of the limitations on remedies that exist in Part III of the TRIPS on the remedies to infringement.

The secret process that created ACTA sought to establish a new captured institution that will advance right holder interests through both hard and soft norms.

ACTA creates a new ACTA Committee, which has broad powers to amend the agreement, and to provide technical assistance on its implementation, and to promote "best practices . . . on reducing intellectual property rights infringements including techniques for identifying and monitoring piracy and counterfeiting."

Despite the massive criticism of the ACTA negotiating process, there is no requirement that the ACTA Committee operate in a transparent, open and inclusive process, and no political commitment from any of the ACTA members to do so.

ACTA is widely seen as the first step in a longer and more ambitious right holder driven process to increase the surveillance of uses of goods, and to continually advance right holder interests at the expense of consumers and users of intellectual property goods. Multilateral institutions like the World Intellectual Property Organization (WIPO) are relatively more open and more accountable than is the ACTA Committee. ACTA was created to give right holders more control over how technical assistance and software norm making is done, and to provide a more friendly environment to adopt hard norms, via the internal ACTA amendment process.

The United States does not consider itself bound by ACTA, but will seek to impose ACTA on developing countries.

USTR has repeated assured Congress that it is not bound by ACTA, and that no changes in US law will be made to comply with ACTA, even in those areas where ACTA conflicts with US law, such as our many limitations on damages from infringement for copyright and trademarks. The US government does intend for ACTA to be binding on developing countries, as part of a "do as we say not as we do" foreign policy.

See, for example: Two areas where ACTA is inconsistent with US law, injunctions and damages, James Love and Krista Cox, KEI Policy Brief, 2011:2 30 September 2011, revised 3 October 2011.