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ACTA Refracta: Future Uncertain for ‘Secretive’ IP Trade Agreement

The SOPA/PIPA uprising appears to have doomed those bills, but the United States Congress is not the only entity considering new restrictions on the web.  Trade agreements are emerging as the new legal device for combatting unlicensed use of intellectual property online – avoiding the legislative process, and potentially impacting the openness of the Internet in ways that are inciting outrage in the online community.  Two such agreements are positioned to have considerable effects on the global enforcement of intellectual property rights – the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership Agreement (TPP).  This post looks at the first of these agreements, ACTA; check back shortly for our discussion of TPP.

ACTA is a multilateral agreement that emerged from talks between the U.S. and Japan in 2006.  ACTA strives to establish create a ‘gold standard’ in international enforcement of intellectual property law – in many ways, exporting the U.S. enforcement regime to signatory nations.  The agreement’s key provisions require member nations to adopt enforcement rules similar to the American Digital Millennium Copyright Act (DMCA), which criminalizes production or distribution of technology used to circumvent digital rights management or copy protection measures.

Perhaps unsurprisingly, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) proclaimed their support for ACTA on the eve of a signing ceremony during which the U.S. and seven other nations joined the agreement.  In a statement applauding the efforts of ACTA signatories, former Senator and current MPAA chairman and CEO Chris Dodd stated that as many as 2.2 million U.S. jobs depend on “strengthened international cooperation and enforcement of intellectual property rights,” calling ACTA “an important step forward.”  Dodd has also threatened to withhold financial support from U.S. politicians who fail to take a hard line on web ‘piracy’.

But ACTA seems to have failed to garner support from any quarter besides large content interests.  Leaked early drafts of ACTA drew intense criticism, revealing an enforcement regime that would enable the ACTA Commission to shut down websites by ordering suspension of Internet service after three allegations of inappropriate use.  Those so-called ‘three strikes’ provisions were removed, but other concerns remained.

International aid groups charged that the border enforcement measures of ACTA would effectively criminalize transit of generic medicine and genetically modified foods.  However, even opponents of the agreement have noted that ACTA exempts patents from the scope of its border measures.  But while ACTA may not ‘ban’ generics, at least one analysis indicates that it could negatively impact the flow of such drugs to poor countries because of the increased risk of wrongful searches, seizures, and lawsuits.

ACTA’s border measures also prompted worries that the agreement would result in searches of iPods and laptops at borders, along with the possibility that ordinary tourists may be fined or forced to surrender cell phones and other devices.  The European Commission has noted that it has legislatively adopted a de minimis exclusion that would protect travelers who are not participating in large scale trafficking, and has likewise urged that it has neither the resources nor desire to re-purpose border security agents into intellectual property police.  Other nations have agreed to adopt this approach, but it is unclear exactly how much peace of mind these assurances should reasonably provide.

In broadest strokes, opponents of the most up-to-date version of ACTA appear to be questioning the wisdom of the current U.S. intellectual property enforcement regime – and particularly the wisdom of imposing it on developing nations.  Citing large monetary judgments like the $1.5 million Jammie Thomas-Rasset was ordered to pay for downloading 24 songs, critics have expressed doubt that the U.S. system’s merits are so great as to warrant a worldwide ratcheting-up of IP enforcement.

But the issues with ACTA have not all been substantive – to many opponents of the agreement, procedural concerns predominate the concerns about what’s actually left of ACTA.  The most central of those concerns is the allegedly shrouded negotiation process.  ACTA initially came into the public view in 2008 through the efforts of WikiLeaks, prompting critics to charge that the onerous nature of the agreement could be rightly inferred from the secrecy with which it was negotiated – though the European Commission has countered that the negotiations took place out of public view for “efficiency” purposes only.

Apart from the allegedly covert nature of the negotiations, critics have also found fault with the fact that the parties created a brand new governing body, the ACTA Committee – rather than working within the framework of existing international organizations (like WIPO, the WTO, or G8).  Publicly, parties have stated that the decision to work outside such institutions was a matter of institutional competence, but leaked documents indicate that ACTA parties deliberately avoided such forums to avoid having to deal with objections from nations that oppose stricter enforcement of IP.  In March 2010, the European Parliament passed a resolution stating that the body “deplores the calculated choice of the parties not to negotiate through well-established international bodies[.]”

Finally, within the U.S., constitutional questions linger about whether ACTA is properly classed as an executive agreement.  The Obama Administration and the Office of the U.S. Trade Representative (USTR) assert that ACTA is merely a trade agreement, meaning that it is entitled to legal force without any action on the part of Congress.  But constitutional scholars including Harvard Law professor Larry Lessig have argued that because intellectual property enforcement is constitutionally committed to Congress, ACTA is in reality a treaty, and therefore unenforceable without ratification by Congress.  Senator Ron Wyden (D-OR), sponsor of the “OPEN Act,” which would grant the International Trade Commission authority to rule on global IP disputes, has raised similar concerns.  The USTR’s position is that ACTA does not change existing U.S. law, but OPEN’s co-sponsor, Congressman Darrell Issa (R-CA) challenges that even if that is true, once implemented, Congress would have no ability to undo the enforcement system ACTA institutes.

The U.S. and seven other nations signed the agreement in October of 2011, but public pressure has created snags to the agreement’s swift adoption in the European Union.  ACTA was signed by European Commission representatives as well as ambassadors from each EU nation, but the deal cannot go into force in the EU absent ratification by the legislatures of member states.  Following the initial signing, however, the European Parliament’s rapporteur resigned in protest, calling ACTA’s approval a “masquerade.”  Amid protests, Germany, Poland, the Czech Republic, and Slovakia have delayed ratification indefinitely, and Slovenia’s ambassador issued an apology for having been “careless” in signing the agreement.  Most recently, Bulgaria and the Netherlands refused to ratify the agreement, prompting the European Commission to announce plans to seek an advisory opinion from the European Court of Justice on the constitutionality of ACTA.

The future of ACTA is uncertain, but many are looking at it as a fait accompli.  Nonetheless, some cracks in the façade are beginning to appear as ACTA has come into the daylight, and it’s far from certain that it will be ratified by all EU nations.  However, the agreement only requires ratification by six nations in order be enforced and with the U.S. already on board, a constitutional challenge appears to be the only way to stop ACTA domestically.  But even if a net roots revolt doesn’t send ACTA the way of SOPA, there can be no doubt that international regulation of intellectually property is catching the public’s attention on a global scale unrivaled by most policy matters.  Future efforts to negotiate such agreements in relative secrecy may prove more challenging than the parties imagine at present.

Visit again soon for a discussion of a related (but less reported) agreement, the Trans-Pacific Partnership Agreement.

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