Anti-Counterfeiting Trade Agreement

ACTA is the Anti-Counterfeiting Trade Agreement being negotiated by the US, the EU, Japan, South Korea, Canada, Mexico, Australia, and New Zealand. The stated goal of the agreement is the international enforcement of strong intellectual property rights through increased cooperation and coordination among international governmental agencies. ACTA does not yet exist, though its ongoing discussions are confirmed by all of the participating governments. What we know of ACTA derives from the following documents:

USTR’s Fact Sheet (October, 2007)
Notice for Public Comment and “fact sheet” posted by the USTR in February, 2008.
The succession of responsive comments filed by March 21, 2008; many of which are linked below.
A leaked “discussion paper” that was posted on Wikileaks in late May 2008.

ACTA has three major legs: International Cooperation, Enforcement Practices, and Legal Framework. International cooperation seems to generally encourage information sharing among the customs agencies of the various countries. It is considered one of the less controversial ACTA legs. The enforcement practices section is also nebulous but openly declares its belief in “strong intellectual property protection.” The Legal Framework has the potential to be the most expansive, and, therefore, most problematic, section.

The biggest concern with ACTA is that there has been very little transparency regarding its substance and the process that is putting it into place. Although the USTR invited the public to comment on the agreement, the public was given very little information to comment on. What is more disconcerting is that the leaked discussion paper seems to heavily reflect the wish lists provided in the comments from the industry groups. Also, ACTA is being negotiated outside forums such as WIPO were the negotiation would be more open.

A second major concern with ACTA’s very nature is that it is being designed as an “executive agreement,” rather than as a “treaty.” Executive agreements do not require Congressional approval before they may take effect. As a result, there is little to keep the signatories accountable to the public, especially in an election year that will see the departure of the current executive.

A third major concern with ACTA is that it will be used to “policy launder” its most contested provisions, whatever they may turn out to be. Policy laundering is the use of international treaties or other agreements to justify the passage of controversial legislation within one’s own country. The idea is that, once there is an international agreement committing the US to certain policies, there will be greater leverage applied on US legislators to make those policies a reality. This process was used in the passage of the DMCA in 1998 and is ably described in the ACTA context here.

Further concerns about ACTA are more speculative since they regard its content, which has not been officially released in any format. Nonetheless, some of these concerns include the vague, amorphous manner in which “counterfeit” is used in many of the public comments. These uses run the gamut from undisputedly illegal products to expressly legitimate generic products. The introduction of “piracy” to the discussion further widens ACTA’s potential scope and confuses the distinctions between private uses and commercial scale uses, especially regarding Internet use. It is difficult to discern the precise nature and purpose of ACTA when so many different concepts and definitions are held under the singular banner of “counterfeit.”

A healthy public debate informed by the actual provisions of ACTA will go a long way toward alleviating many of these concerns. To achieve this, it is imperative that the USTR make a draft text of the treaty available to the public.

Comments Filed