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    ACTA: Will It Ever Become A Valid International Treaty?

    Published on 13 September 2012 @ 4:13 pm

    By for Intellectual Property Watch

    A quiet and little-publicised ratification process might be the last hope for those pushing for international adoption of the Anti-Counterfeiting Trade Agreement (ACTA). But while the Japanese legislature managed to finalise their ratification recently, processes in several ACTA signatory states seem to be stalled. Some may ask whether ACTA will ever become an international treaty.

    “In the middle of the night” and “without ever being heard of by the general public” were the attributes used in media reports to characterise the ratification process completed after votes in the two chambers of the Japanese legislature.

    The ACTA text is available here.

    Angry Pirate Party in Japan

    “We are angry, because ACTA was ratified by a non-democratic way,” Hideto Suzawa, a provisional party leader of the nascent “Pirate Party Japan” wrote to Intellectual Property Watch.

    Legislators had taken up the ratification process over the summer holidays with a Committee of the House of Councillors on 31 July approving the agreement after one hour of what Suzawa called “empty deliberations”. Only three days later, the House of Councillors, after a mere four minutes of discussion, approved the ratification by a 217 to 9 vote, according to Suzawa. “All mass media have refused to report about this affair again,” he complained.

    But with a censure motion against the Japanese Prime Minister in place on 30 August, the Japanese ACTA opponents felt safe at least for the moment, as normally legislative activities stop due to the fact that the opposition parties supporting the censure motion do not participate in any further pending votes. “We felt that a miracle happened,” Suzawa said.

    But on 31 August, a committee of the House of Representatives, and on 6 September, the full House of Representatives pushed ACTA through, each time counting only the votes of the ruling party.

    “To ratify an international treaty without the attendance of all opposition parties means a collapse of democracy in Japan,” warned Suzawa. The Pirate Party, which intends to become a registered political group this month, will continue to campaign against ACTA, even now.

    Six Ratifications Necessary; Many Processes Slowed or Stalled

    ACTA will only become a valid international agreement for the ACTA partners after six ratification documents have been deposited with the Japanese government, which is the chosen depository.

    With an apparent stalemate between the US administration and legislators about ratification procedures and the European Union out after the Parliament voted against the agreement, it looks as if there is still an uphill battle to get to reach that number.

    Besides the EU and Japan, seven governments have signed ACTA (Australia, Canada, Morocco, New Zealand, Singapore, South Korea and the United States). Switzerland has not signed nor ratified.

    “Not much is happening on the Canadian front,” wrote Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa and long-time ACTA observer. “Canada signed ACTA, but has not ratified. Ratification would likely require some legislative amendments,” Geist said, and until those changes are introduced the country would not be positioned to ratify. There may be, according to Geist, linkage between ACTA and CETA (the Canada-EU Trade Agreement) under negotiation.

    Britton Broun, media advisor of the Economic Group in the Ministry of Business, Innovation and Employment of New Zealand, responded to Intellectual Property Watch by saying: “While New Zealand has signed ACTA, the government has not yet taken a decision on its ratification.”

    As was usual practice with international treaties, “there will be public consultation and the preparation of a National Interest Analysis (NIA) prior to the government making a decision on ratification,” Broun said. “If a decision was taken to ratify the agreement, the text of the agreement and the accompanying NIA would then be tabled in Parliament for scrutiny and debate.”

    The place for the public to make submissions would be a “select committee”. Also, the official said, “any decision by the government about ratification would naturally take into consideration developments in other ACTA signatory countries.”

    Developments in other countries have not been friendly to ACTA so far, however. Yet another example is the situation in Australia. Kimberlee Weatherall, associate professor at University of Sydney Law School, explains that in Australia the parliamentary “Joint Standing Committee on Treaties (JSCOT) “recommended a wait and see approach: wait to see what happens in Europe, in particular.” That had been before the EU Parliament rejected ACTA in June. The JSCOT, according to Weatherall, also recommended “that the government do work into possible impacts of the treaty and offer some explanations, and that the committee look at it again once that work was done.”

    Rarely has the JSCOT made such a negative report, Weatherall wrote. And with no answer from the Australian government to this report so far, Weatherall said, “the process is stalled.”

    “I think there is still a chance that the government will choose to ratify, asserting the view, strongly held by the bureaucracy/negotiators, that it does not require any changes to Australian law, Weatherall said. “I think, however, that the government won’t be in any hurry to do so, and may in fact wait the outcome of the Trans-Pacific Partnership Agreement [TPP] negotiations or further developments in Europe, and ratify at some later point as part of a package of IP measures.“

    Push for ACTA and Move On

    The 14th round of TPP negotiations is currently being held in Leesburg, Virginia, amidst ever louder calls to publish the full text – there is a “Wanted” poster by the organisation Democracy in Action that has collected over $32,000 US dollars for anyone who publishes the TPP draft text.

    The TPP brings several of the troubled ACTA negotiators together again, including Australia, Canada, Mexico, New Zealand, and the United States.

    In Mexico, recently the IP Office (IMPI) did sign ACTA despite the earlier vote of the Mexican Senate to reject ACTA.

    Luis Mariano Velázquez Chéquer, deputy director for the Promotion and Dissemination of Industrial Property at the IMPI informed Intellectual Property Watch that the new senators who were appointed on 1 September would “in the future” be in charge to either “ratify or reject Mexico’s adhesion to ACTA.”

    Can ACTA finally be ratified after all the “noise” around the agreement has died down and the opponents’ attention has shifted? Perhaps a quiet approval like in Japan is still possible, otherwise negotiators will just have to re-start as the TPP or CETA negotiators somehow already did.

    Monika Ermert may be reached at info@ip-watch.ch.

     

    Comments

    1. Reinier Bakels says:

      It seems that the report would regret if ACTA would not become an international treaty. Note however that the ACTA process is a less than democratic (to put it mildly), that it serves unilaterally the interests of the entertainment industry, and that it is by and large redundant in view of the TRIPS agreement – with only the major difference that it avoids judicial review.
      If interests are really strong, interested parties avoid both democratic control and judicial control. But that is against the rules of the game.

    2. Tracy Corneau says:

      In response to Reinier Bakels comments, I am curious as to why you believe the ACTA serves unilaterally the intersts of the entertainment industry. I am aware of companies/clients who have legitimate concerns relating to the very real sale of counterfeit pharmaceuticals and electrical products to the public (which poses health and safety risks). In many countries there is insufficient legislation to assist commpanies, customs officials and other agencies in more effectively dealing with these issues.

    3. Kage says:

      Is that the same pirates party_?
      They denied the democratic procedure inside of his party,i’m afraid.

      Mr.Hideto Suzawa is the expresident of would-be PPJ,isn’t he?


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

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