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A new international treaty on the enforcement of intellectual property rights may see the light of day before the year is out despite serious misgivings from the public.
Negotiations on the Anti-counterfeiting Trade Agreement (ACTA) between Australia, Canada, the EU, Japan, Mexico, New Zealand, South Korea and Switzerland and the US started in October 2007 with the goal of curbing counterfeiting and piracy of copyrighted and trademarked goods through stronger laws, closer cross-border co-operation in law enforcement and the adoption of practices that make IPR protection “real and effective, such as encouraging consultations with right-holders and specialisation in the IP law enforcement system” (Bridges Year 11 No.7 page 22). The pact is being negotiated independently of any international frameworks, such as the World Intellectual Property Organisation (WIPO), but will be open to other countries wishing to participate.
While the talks have reportedly progressed on schedule, little is known of the contents of the treaty, which has strong backing from the movie, music, software and fashion industries. There is widespread concern over potential infringements of ordinary citizens’ privacy, including border searches of laptops and music players, or turning internet service providers into ‘copyright police’ instead of making it the business of copyright owners to track abuses.
On 17 September, two US-based citizens’ organisations sued the Office of the US Trade Representative under the Freedom of Information Act for not granting them access to ACTA-related agency records. The Electronic Frontier Foundation and Public Knowledge alleged that USTR was withholding information on the participants, meeting agendas, memoranda and other relevant documents. Together with some 100 public interest groups they have called on ACTA negotiators to immediately publish the draft text of the agreement.
The signatories argue that “secrecy around the treaty negotiation has fuelled concerns that its terms will undermine vital consumer interests.” Among such concerns, they cite potential ACTA provisions that could require Internet service providers to monitor all consumers’ Internet communications; interfere with fair use of copyrighted materials; criminalise peer-to-peer electronic file sharing; and undermine access to low-cost generic medicines.
With regard to access to medicines, the groups say they fear ACTA provisions could:
• interfere with legitimate parallel trade in goods, including the resale of brand-name drugs;
• impose liability on manufacturers of active pharmaceutical ingredients if they are used to make counterfeits, which could make manufacturers reluctant to sell to legal generic drug makers;
• improperly criminalise acts not done for commercial purpose and with no public health consequences; and
• improperly divert public resources into enforcement of private rights.
“Because the text of the treaty and relevant discussion documents remain secret, the public has no way of assessing whether and to what extent these and related concerns are merited,” the groups said in a press release. They also maintained that the situation was made worse by “the perception that lobbyists from the music, film, software, video games, luxury goods and pharmaceutical industries have had ready access to the ACTA text and pre-text discussion documents through long-standing communication channels.”
Some US politicians have also raised concern over the agreement. In October, Senators Patrick Leahy and Arlen Specter of the Committee of the Judiciary wrote to Trade Representative Susan Schwab that they feared the treaty could “limit Congress’s ability to make appropriate refinements to intellectual property law in the future” if it was not drafted with sufficient flexibility. Their worries were compounded by the lack of transparency of the negotiations and the speed with which the process was moving, the authors said. They also urged USTR “not to permit the agreement to address issues of liability for service providers or technological protections measures,” which are being debated in US courts and Congress.
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