USTR Offers Answers To Some Thorny Questions On ACTA

A letter from the United States government answering a variety of sticky questions about the controversial Anti-Counterfeiting Trade Agreement has been released online. The 28 January letter is addressed to Senator Ron Wyden (Democrat, Oregon) from US Trade Representative Ron Kirk.

It is available here. It was in response to this letter from Senator Wyden, who is chair of the Senate Subcommittee on International Trade, Customs, and Global Competitiveness.

The USTR letter claims that a ACTA negotiators’ consensus document summarising the issues behind ACTA’s creation declares the future treaty “will respect the Declaration on TRIPS [the World Trade Organization Trade-Related Aspects of Intellectual Property Rights agreement] and Public Health” and is “not intended to interfere with a signatory’s ability to respect its citizens’ fundamental rights and civil liberties.”

On the type of IP rights the agreement will address, it says only that it will be similar to earlier free trade agreements. Links to the relevant trade agreements can be found here. The FTAs’ scope is broader than the original expected scope of ACTA – which was to deal with pirated and counterfeit goods (normally seen as involving trademark and copyright law) – by also including enforcement of certain patent rights.

But the letter does say that, while it is seeking the right for customs officials to be able to seize suspected counterfeit or pirated goods (including goods in transit), the US does “not support extending that provision to include suspected patent infringement.” This was in response to a question about legitimate generic drugs in transit held up over suspicion of patent infringement.

USTR also claims it is taking several steps to increase the transparency of ACTA negotiations, including releasing meeting agendas, providing links to related past agreements, and getting advice from relevant stakeholders.

The letter gives vague answers on the expansion ofrights-holders’ ability to obtain information possessed by an alleged infringer related to the alleged infringement, and on whether ACTA parties would have to obey the Digital Millennium Copyright Act.

It also addresses questions about possible changes to US law, the definition of “counterfeit,” patent infringement injunctions, parallel trade, criminal penalties, dubious foreign patents, penalties for online service providers, the possibility of terminating internet services to repeat infringers, third-party liability for internet service providers, and inter-industry arrangements to reduce piracy risks.

The countries involved in the ACTA negotiations are: Australia, Canada, the European Union, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea and Switzerland.

The ACTA negotiation is the target of criticism in numerous submissions to this year’s USTR Special 301 process that takes aim at alleged inadequate protection of US IP rights.