Key US Senators Warn Bush Administration On ACTA

By William New
The leaders of the powerful United States Senate Judiciary Committee on Thursday warned US trade negotiators to rein in the scope of negotiations on an international treaty against counterfeiting, and to make the process more transparent. At the same time, they chided the Bush administration for failing to support the senators’ legislative efforts to strengthen domestic protection for intellectual property rights.

At issue is the Anti-Counterfeiting Trade Agreement (ACTA), which the United States has been trying to push through by year’s end.

“We are concerned … that the ACTA under consideration will prescribe rules for protection so specifically that it could impede Congress’s ability to make constructive policy changes in the future,” Senators Patrick Leahy (Democrat, Vermont) and Arlen Specter (Republican, Pennsylvania) said in a 2 October letter to US Trade Representative Susan Schwab.

The letter is available here.

In particular, the senators raised concern that if ACTA is too inflexible it will hamper Congress’s ability to make “appropriate refinements” to US intellectual property law in the future, a concern they said was raised in relation to the US-Peru Free Trade Agreement.

In addition, they urged USTR not to permit the agreement to address liability for internet service providers or technological protection measures, as they issues are under debate in the courts and Congress. “As technology is not static, Congress must have the ability to tailor the law as developments warrant without concern that a change may run afoul of ACTA,” they said.

They said they “applaud” the administration’s efforts to raise the importance of intellectual property protection, but posed the concern about the breadth, specificity, transparency and speed of the talks.

And they made clear their wish to get administration support for a bill they sponsored and modified to meet administration opposition that Congress passed this week and sent to the President for signature. That bill, S 3325, the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008, would create an intellectual property “czar” in the White House, among other things (IPW, US Policy, 1 October 2008).

“We are disappointed that the administration has been resistant to this [legislative] effort and has opposed additional enforcement authority, such as civil enforcement in copyright cases where the violation rises to the level of criminal activity,” they wrote.

The letter is likely to be taken into account, as any US treaty negotiated by the Executive branch normally must be subjected to Senate approval, and their committee is primary on criminal matters.

“We urge you not to rush into a new, broad Anti-Counterfeiting Trade Agreement that may have a significant impact on intellectual property protection at home and abroad and which can take effect without formal congressional involvement,” they said. “We encourage you to limit the agreement to improved coordination among nations and robust, but flexible standards for civil, criminal, and border enforcement.”

William New may be reached at wnew@ip-watch.ch.