USTR releases finalized ACTA text: Concerns remain

Today the United States Trade Representative (USTR) released the finalized text of the Anti-Counterfeiting Trade Agreement (ACTA), claiming to smooth out disagreements among the negotiating parties. However, our concerns with respect to some provisions remain. I had outlined these concerns in my previous post.

Changes in the new text

First, with respect to trademark infringement in the digital environment, the parties agreed to remove references to trademarks from some sections and keep it in others. Thus, they agreed not to have a requirement to apply enforcement procedures to trademark infringements occurring over the Internet. However, they would have a requirement to “promote cooperative efforts within the business community” to address trademark as well as copyright infringement. In addition, courts in ACTA countries would have the authority to order “online service providers” to reveal to copyright and trademark owners, the identity of their subscribers accused of infringement. The term “online service provider” is not defined. So it is unclear whether ACTA would apply this provision to ISPs or content hosts, such as YouTube.  While the USTR may be able to claim that provisions relating to trademarks would not “require” a change to U.S. law, they are probably going to be used to require such provisions in the laws of other countries. Within the U.S., some fear that they would be used to pressure Congress to enact laws that would be the trademark equivalent of the Digital Millennium Copyright Act – a Digital Millennium Trademark Act. 

Second, camcording would no longer be considered a crime. Countries would however have the option to consider it a crime. However, judges in ACTA countries could still order seizure, forfeiture, and destruction of DVDs containing camcorded movies, or equipment used in camcording. While making fines and imprisonment for camcording optional is a welcome development, inclusion of the seizure and forfeiture provisions as mandatory is still problematic. This concern relates not just to camcording, but to all seizure, forfeiture, and destruction provisions in ACTA. We have written before about problems caused by these provisions, explaining how overbroad seizure and forfeiture provisions would ensnare devices with only a fleeting connection to the offense.

Third, parties agreed that ACTA would not completely exclude patents, but countries would have the option to exclude patents from domestic application. The USTR had taken a strong initial position that patents would not be included in ACTA and today’s text reveals a softening in U.S. stance revealing negotiating pressures and the USTR’s need to get an agreement done, at the cost of major compromises. While PK has not been heavily involved in issues relating to the inclusion of patents, a number of groups advocating for better access to medicines have expressed serious reservations with inclusion of patents.

The rest of the sections of ACTA seem identical to the older version released in October.

What's next for ACTA?

The USTR’s press release explains that the ACTA text would now be subjected to “relevant domestic processes.” In the U.S. context, this may mean that the USTR will solicit public comments on the draft text. But with so much of the text finalized, it is unclear whether the USTR would be willing to negotiate for changes to the agreement based on public input. 

Meanwhile, the agreement has to go through parliamentary approval in the European Union. Given the Parliament’s vote against ACTA’s process and substance, their approval may not be a slam dunk. 

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