Inside Views The ACTA Threat To The Future Of WIPO
Published on 14 April 2009 @ 6:32 pm
Disclaimer: the views expressed in this column are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors.
Intellectual Property Watch
Since representatives from the United States, European Union, Canada, and a handful of other countries simultaneously announced their participation in the Anti-Counterfeiting Trade Agreement negotiations in October 2007, the ACTA has been dogged by controversy over the near-total lack of transparency. Early negotiations were held in secret locations with each participating country offering near-identical cryptic press releases that did little more than fuel public concern.
The participating countries conducted four major negotiation sessions in 2008 and though the first session of 2009 was postponed at the request of the US (which was busy transitioning to a new president), the negotiations are set to resume in Morocco in May. In recent weeks, the structure and key provisions within the draft treaty have come to light, yet it is the candid acknowledgment that ACTA represents an attempt to avoid the consensus-building approach of the World Intellectual Property Organization that should give supporters of a multilateral approach to intellectual property policy making pause.
The ACTA details have come from two sources – a growing number of internet-based leaks and the governments themselves. The leaks began in early February, with blog postings and online references to specific draft language. With the cat seemingly out of the bag, the negotiating countries released a six-page summary earlier this month that confirmed much of the online speculation.
The proposed treaty has six main chapters: (1) Initial Provisions and Definitions; (2) Enforcement of Intellectual Property Rights; (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, which is divided into four sections – civil enforcement, border measures, criminal enforcement, and the Internet. The first three sections were addressed in meetings last year. Although there is still considerable disagreement on the final text, leaked documents indicate that the draft includes increased damage awards, mandated information disclosure that could conflict with national privacy laws, as well as the right to block or detain goods at the border for up to one year.
Moreover, the criminal provisions go well beyond clear cases of commercial infringement by including criminal sanctions such as potential imprisonment for “significant wilful copyright and trademark infringement even where there is no direct or indirect motivation of financial gain.”
Jail time for non-commercial infringement will generate considerable opposition, but it is the internet provisions that are likely to prove to be the most controversial. At the December meeting in Paris, the US submitted a “non-paper” that discussed internet copyright provisions, liability for internet service providers, and legal protection for digital locks.
While the substance of the treaty will remain fodder for much debate, Canadian officials recently hosted a public consultation during which they acknowledged the true motivation behind the ACTA. Senior officials stated that there were really two reasons for the treaty. The first, unsurprisingly, was concerns over counterfeiting. The second was the perceived stalemate at WIPO, where the growing emphasis on the Development Agenda and the heightened participation of developing countries and non-governmental organisations have stymied attempts by countries such as the United States to bull their way toward new treaties with little resistance.
Given the challenge of obtaining multilateral consensus at WIPO, the ACTA negotiating partners have instead opted for a plurilateral approach that circumvents possible opposition from developing countries such as Brazil, Argentina, India, Russia, or China. There have been hints of this in the past – an EU FAQ [frequently asked questions] document noted that “the membership and priorities of those organisations [G8, WTO, WIPO] simply are not the most conducive” to an ACTA-like initiative – yet the willingness to now state publicly what has been only speculated privately sends a shot across the bow for WIPO and the countries that support its commitment to multilateral policymaking.
Indeed, there is little reason to believe that WIPO could not serve as the forum to advance intellectual property enforcement. The WIPO General Assembly created the Advisory Committee on Enforcement (ACE) in 2002 with a mandate that includes “coordinating with certain organisations and the private sector to combat counterfeiting and piracy activities; public education; assistance; coordination to undertake national and regional training programs for all relevant stakeholders and exchange of information on enforcement issues through the establishment of an Electronic Forum.”
The decision to move outside the WIPO umbrella and effectively exclude the developing world from participating in the ACTA negotiations has significant short and long-term implications. In the short-term, WIPO members can expect progress on Development Agenda issues to stall as ACTA partners focus on completing their treaty. Given the scepticism surrounding the Development Agenda harboured by some ACTA countries, they may be less willing to promote the Agenda since their chief global policy priorities now occur outside of WIPO.
The longer-term implications are even more significant. While it seems odd to conclude an anti-counterfeiting treaty without the participation of the countries most often identified as the sources or targets of counterfeiting activities, the ACTA member countries will undoubtedly work quickly to establish the treaty as a “global standard.” Non-member countries will face great pressure to adhere to the treaty or to implement its provisions within their domestic laws, particularly as part of bilateral or multilateral trade negotiations. In other words, there will be a concerted effort to transform a plurilateral agreement into a multilateral one, though only the original negotiating partners will have had input into the content of the treaty.
With all the cards now on the table, the developing world faces a stark choice – remain on the ACTA sidelines and face a future filled with pressure to implement its provisions or demand a seat at the table now. Countries such as Mexico, Morocco, and the United Arab Emirates have all been part of current or previous ACTA negotiations, suggesting that there is little reason to exclude any country that wants in.
By bringing Brazil, Argentina, Chile, India, Egypt, South Africa, China, Russia, Indonesia, and a host of other countries into the mix, the ACTA would shift back toward a multilateral treaty and in the process ensure that the counterfeiting and piracy concerns of the global community are appropriately addressed. Moving the ACTA discussion into WIPO may not be happen, but it is still possible to imbue the negotiations with both transparency and broad participation from the developed and developing worlds.
Dr. Michael Geist is a law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. Dr. Geist has been an active commentator on the Anti-Counterfeiting Trade Agreement in his weekly columns in the Toronto Star and Ottawa Citizen as well as on his blog at www.michaelgeist.ca. He can be reached at mgeist@uottawa.ca.
Categories: Inside Views, Copyright Policy, Enforcement, English, WIPO
14 April 2009 at 11:03 pm
More Insights into ACTA…
Slowly but steadily more light comes into the ACTA matter (see my previous posts here, here, and there). Recently WikiLeaks has unearthed US, Japan and EU ACTA trade agreement drafts which may not be up-to-date but which at least give some impression…
14 April 2009 at 11:25 pm
There is more to it. ACTA has nothing to do with trade between these nations except that policies are to be traded. The victim is parliament scrutiny. Those developing nations will learn the benefits of ACTA. Bananas vs. ACTA. Legislature itself becomes subject of international trade.
We don’t even need ACTA for that, think of the recent EU-India bilateral trade agreement. It is all negotiated bilaterally in parallel.
In the EU we have Baroness Ashton, unelected, a Trade Commissioner and her hotshot staff. We have the Council of the European Union where government specialists work on EU “harmonisation” of national laws. And they delegate powers to the most qualified body in IP matters, DG Trade and these Trade politicians meet up with their peers abroad and agree on IP enforcement policies and then force these rules upon their legislators and third nations.
But where is Parliament in that? Where is the public scrutiny?
The negotiation mandate for ACTA was kindly declassified for everyone to see:
http://register.consilium.europa.eu/pdf/en/08/st07/st07759-ex02.en08.pdf
NOT DECLASSIFIED FROM THIS POINT UNTIL THE END OF THE DOCUMENT
(page 6)
http://register.consilium.europa.eu/pdf/en/09/st06/st06631.en09.pdf
2. ACTA (m.ds. 59/09, 59/09 COR 1, 61/09 and 84/09, 86/09, 87/09, 89/09, 90/09)
The Commission presented recent developments, DELETED.
The Presidency concluded that the Commission would send all the revised texts first to Member States and only thereafter to the negotiating partners.
Nice that the US, Canada and Moronistan know what my EU officials negotiate but I as a citizen may not even see what the scope of their negoation mandate is!
15 April 2009 at 2:43 am
Michael’s conclusion, that “the developing world faces a stark choice – remain on the ACTA sidelines and face a future filled with pressure to implement its provisions or demand a seat at the table now,” is 100% correct, but I suggest that ordinary humans in the developed world are more closely aligned with the developing world agenda than that of the major corporations pushing the ACTA agenda from the comfort of their own developed world. The development agenda is, after all, nothing more than an effort to bring some balance back to the notion of promoting the progress of science and useful arts through exclusive rights. Lately, “rights holders” use “jobs” and “balance of trade” and other such jargon to lobby for their position rather than the original purpose in granting exclusive rights. As a U.S. citizen, I may be in a better position to afford the high price of anti-competitive use of exclusive rights, but like my developing nation counterparts, I am also harmed by them. If the poor cannot afford the life-saving drug and I can afford to pay a price-gouger, I may be better off, but I still suffer the injustice. That’s why the negotiations remain so secretive, accessible only to select government negotiators and private secotr foxes building the hen houses. If more transparent, humans around the globe might unite against the corporate crafters of government policy.
15 April 2009 at 8:31 am
[...] The ACTA Threat To The Future Of WIPO [...]
15 April 2009 at 9:29 am
[...] The ACTA Threat To The Future Of WIPO [...]
16 April 2009 at 12:20 am
[...] no rumo das negociações mundiais do que até aqui. A sugestão apresentada pelo jurista canadiano Michael Geist a esses países consiste em exigir um lugar na mesa das negociações do ACTA. Só assim, [...]
17 April 2009 at 7:24 am
[...] The ACTA Threat To The Future Of WIPO [...]
17 April 2009 at 3:10 pm
[...] 17, 2009 · No Comments http://www.ip-watch.org/weblog/2009/04/14/the-acta-threat-to-the-future-of-wipo/ This link is to an interesting piece on IP Watch written by Dr Michael Geist discussing the [...]
20 April 2009 at 3:31 pm
[...] a 6 page document outlining the key elements under discussion. More information available from IP Watch and Ars [...]
24 April 2009 at 2:47 am
[...] The primary reason why the discussion that is occurring at ACTA is not occurring at WIPO is because that body is actually international. As such,there is, among certain developed countries, a “perceived stalemate at WIPO, where the growing emphasis on the Development Agenda and the heightened participation of developing countries and non-governmental organizations have stymied attempts by countries such as the United States to bull their way toward new treaties with little resistance.” (Geist) [...]
20 May 2009 at 2:07 am
[...] The ACTA Threat To The Future Of WIPO Comments (0) [...]
31 August 2009 at 9:04 am
Indeed, ACTA seems to threaten the relevancy of WIPO, but especially WTO’s TRIPs.
One innovation of TRIPs is that is can use the dispute resolution mechanism of the WTO. In other words TRIPs is WIPO plus teeth. How do you think the ACTA member countries will enforce ACTA itself? I have not read about who is going to interpret the provisions of the treaty.
18 September 2009 at 1:20 pm
I support the sttement that ACTA is a serious Threat To The Future Of WIPO. Some solution has to be found out.
10 November 2009 at 2:42 am
[...] the world’s highest IP exporters. It’s built to be beneficial to those countries, and screw everyone else (the developing world). Hey, Argentina. Need AIDS medication for dying citizens? Sorry, you [...]
13 November 2009 at 12:24 am
Where exactly they expect to go without the BRIC’s? Can they even go without BRIC’s? In the world today, is the USA or EU in position to impose anything to India, Russia, China and Brazil? Can anyone see a tiny hope of sucess in USA imposing ACTA to Brazil while negotiating a trade agreement on oil or biofuel? One can imagine a teenager being imprisioned for downloading a movie in the USA, Canada, France or England, but can someone realy believe this wuould hapen in China, certainly not in Brazil. I think ACTA is the final breath of a industry who is refusing to see it´s business model has changed, this will bring them more harm tham good. Lets say this agreement suceed and start to work, what image will be associated to american entertainment business? When a kid went to jail for downloading a movie about a strugle for freedom or a rebelion against tirany youl will have the perfect enviroment for a PR nightmare, going further, can a rockstar survive wem his name is envolved in teenager arrestment. Sony, Warner or Dysney can fight against a “we dont put kids on jail” competitor advertising campaing?
3 December 2009 at 1:10 am
[...] Cow Batman! Back in April, Michael Geist’s article, “The ACTA Threat To the Future of WIPO” shed some light on the [...]
31 December 2009 at 1:12 am
[...] - The ACTA Threat To The Future Of WIPO – Intellectual Property Watch :: Michael Geist [...]
31 December 2009 at 4:26 am
[...] - The ACTA Threat To The Future Of WIPO – Intellectual Property Watch :: Michael Geist [...]
27 January 2010 at 10:43 am
[...] my first blog posting on the issue was titled Is ACTA the New WIPO?. I return to that theme in an opinion piece just published by the Swiss-based Intellectual Property Watch. While the first part of the piece [...]
27 January 2010 at 10:44 am
[...] this week, I posted an article on how countries negotiating the Anti-Counterfeiting Trade Agreement now acknowledge that a prime [...]
27 January 2010 at 10:47 am
[...] point to the value of more countries entering into the negotiations as that will provide a greater diversity of views at the [...]
27 March 2010 at 5:24 am
[...] wrote about the ACTA threat to WIPO last year, arguing that successful completion of the ACTA negotiations would undermine the WIPO Development [...]
1 June 2010 at 8:30 pm
[...] this will unquestionably escalate pressure on the ACTA countries to open the process. I have previously argued that ACTA represents a major threat to WIPO and the Development Agenda. The opposition from the [...]
2 June 2010 at 5:09 pm
[...] this will unquestionably escalate pressure on the ACTA countries to open the process. I have previously argued that ACTA represents a major threat to WIPO and the Development Agenda. The opposition from [...]
14 October 2011 at 9:08 pm
[...] the USTR conceived ACTA as a plurilateral agreement, avoiding the checks and balances of existing multilateral norm-setting bodies. After the announcement of ACTA but prior to commencing formal negotiations, the USTR had prepared [...]