The ACTA Threat To The Future Of WIPO

By Michael Geist

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.