By Michael Geist 2/7/09
Negotiations on the Anti-Counterfeiting Trade Agreement resume next month in Morocco, but as the discussions drag on, details on the proposed treaty are beginning to emerge. Obtaining information through official channels such as Freedom of Information requests has been very difficult; however, there is little doubt that lobby groups have been privy to inside information and so reliable sources have begun to sketch a fairly detailed outline of the proposed treaty.
There is some good news from the details that have started to emerge. First, the treaty is far from complete as there are six main chapters and some key elements have yet to be discussed. Moreover, it is clear that there is significant disagreement on many aspects of the treaty with the U.S. and Japan jointly proposing language and many countries responding with potential changes or even recommendations that the language be dropped altogether.
If that is the good news, the bad news is that most other fears about the scope of ACTA are real. The proposed treaty appears to have six main chapters: (1) Initial Provisions and Definitions; (2) Enforcement of IPR; (3) International Cooperation; (4) Enforcement Practices; (5) Institutional Arrangements; and (6) Final Provisions. Most of the discussion to date has centred on the Enforcement of Intellectual Property Rights chapter. As for the other chapters, the U.S. has supplied some proposed definitions and Canada supplied a "non-paper" on the institutional arrangements once a treaty is concluded that calls for the creation of an "ACTA Oversight Council" that would meet each year to discuss implementations, best practices, and assist other governments who are considering joining ACTA.
The work on Enforcement of IPR is broken down into four sections - civil enforcement, border measures, criminal enforcement, and Rights Management Technology/the Internet.
The Civil Enforcement proposals call for the availability of civil judicial procedures for the enforcement of any intellectual property right, though some countries would like this limited to copyright and trademark. Parties to the treaty would be required to implement procedures that include the availability of statutory damages for copyright and trademark infringement (some countries would like this to be optional, while the U.S. would like the damages provisions expanded to patent infringement) as well as court costs.
Additional required remedies include orders to destroy the infringing goods without compensation. The proposals also call for significant mandated information disclosure, including ordering alleged infringers to disclose information regarding any person or third parties involved in any aspect of the infringement (some countries want this deleted and others are seeking to preserve privacy protections).
The Border Measures proposals are also still subject to considerable disagreement. Some countries are seeking de minimum rules, the removal of certain clauses, and a specific provision to put to rest fears of iPod searching customs officials by excluding personal baggage that contains goods of a non-commercial nature. The U.S. is pushing for broad provisions that cover import, export, and in-transit shipments.
The proposals call for provisions that would order authorities to suspend the release of infringing goods for at least one year, based only on a prima facie claim by the rights holder. Customs officers would be able to block shipments on their own initiative, supported by information supplied by rights holders. Those same officers would have the power to levy penalties if the goods are infringing. Moreover, the U.S. would apparently like a provision that absolves rights holders of any financial liability for storage or destruction of the infringing goods.
The Criminal Enforcement proposals make it clear that the U.S. would like ACTA to go well beyond cases of commercial counterfeiting. Indeed, their proposal would extend criminal enforcement to both (1) cases of a commercial nature; and (2) cases involving significant willful copyright and trademark infringement even where there is no direct or indirect motivation of financial gain. In other words, peer-to-peer file sharing would arguably be captured by the provision. The treaty would require each country to establish a laundry list of penalties - including imprisonment - sufficient to deter future acts of infringement. Moreover, trafficking in fake packaging for movies or music would become a criminal act as would unauthorized camcording.
All of these provisions are obviously subject to change since the treaty is still very much a work-in-progress. This may sound repetitive, but citizens of the many countries involved in the ACTA negotiations should not have to rely on leaks and speculation to learn what their governments are proposing. All governments should support a more transparent process that begins with full public disclosures of drafts as well as more robust public consultation and participation.
Update: KEI posts with some specific language from the draft treaty.
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