Media Wonk

Link This | Email this | Comments (0)

Acting out over ACTA - June 2, 2008

Several readers have emailed Media Wonk asking why Content Agenda hasn't devoted more coverage to the Anti-Counterfeiting Trade Agreement being negotiated among the U.S., Canada, Australia, Japan and the European Union. One reason is that the Wonk was traveling last week and didn't and couldn't devote the proper time to studying the leaked discussion paper prepared in October by the Office of the U.S. Trade Representative. Another is that it's a discussion paper, not a draft of the proposed treaty. Interesting to be sure, but a little thin to try to hang some of the more alarmist claims of about it on.

Now that I've read the document closely, however, as well as IPWatch's very useful overview of the situation, those claims seem even more over-the-top. Insofar as any final agreement were to resemble the discussion paper, it would largely call for stricter and more coordinated enforcement of existing statutes, not create new ones such as the supposed new power to search individual iPods at the border for infringing material. In scope and approach, it appears most to resemble the PRO-IP Act in the U.S., which, if passed, would reorient and increase resources for IPR enforcement in the U.S. and internationally. Given the timing of the draft paper's preparation in fact--in the fall of 2007--Media Wonk suspects many of the same interest groups were at work on both, such as the Coalition Against Counterfeiting and Piracy. The PRO-IP Act may have its flaws, but it's not going to create a global copyright police state.

Moreover, it's far from clear that any viable final agreement would really resemble the discussion paper very closely. The discussion paper is the U.S. "wish list," almost certainly dictated by the industries whose interests would be affected. But there's no assurance that any of them would survive the negotiating process. Any attempt to give copyright owners DMCA-like powers to compel ISPs to disclose the identities of alleged file-traders, for instance, as suggested in the paper, would likely face a difficult time in Europe, where data-privacy standards tend to be stricter than in the U.S.

From IPWatch:

“The EU Commission as a general rule strives towards keeping bilateral or plurilateral treaty negotiations in line with norms existing on the EU level,” the German Ministry of Justice said in response to questions from Intellectual Property Watch. “Standards for criminal law sanctions are not in place at the EU level,” it said.

Similarly, the discussion paper's proposal for "Remedies against circumvention of technological protection measures," used by copyright owners could face tough sledding in some jurisdictions, especially if those TPMs include region-coding, which is steadily losing legal protection around the world.

That doesn't mean there's nothing to be concerned about in the ACTA process, however. As IP Justice has pointed out, ACTA is being negotiated directly among the invited participants, outside the jurisdiction of existing international trade institutions such as the WTO.

From IPWatch:

“After the multilateral treaty’s scope and priorities are negotiated by the few countries invited to participate in the early discussions, ACTA’s text will be ‘locked’ and other countries who are later ‘invited’ to sign on to the pact will not be able to re-negotiate its one-sided terms,” IP Justice stated. Signing on to ACTA is said to be “voluntary” but seen as difficult to refuse after the negotiation is completed.

Petra Buhr of IP Justice suggested the World Intellectual Property Organisation or the World Trade Organisation as international fora for negotiations on IP issues. But the US trade official said, “We feel that the approach of a free-standing agreement is an appropriate way to pursue this project among interested countries. We support the important work of WTO and WIPO related to IPR enforcement.”

Translation: We don't want to be subject to some sort of messy, democratic process that might allow developing countries to have a say in our plans for them.

Even within the participating countries, the governments involved are being extremely tight-lipped about the negotiations. The discussion paper, in fact, explicitly recommends that "Sharing of information with the public should be without prejudice to the need to protect investigative techniques, confidential law enforcement information and privacy rights."

Translation: We don't want to be subject to some messy, democratic process that might allow our citizens to have a say in our corporations' plans for them.

[Digital Copyright]  [Legal]  [Regulation & Legislation]  [Trade]   LEAVE A COMMENT