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ACTA and Other Enforcement Efforts: Reading the Lines

October 6, 2008 ,

A lot of the questions about ACTA are raised by reading between the lines of what little is known about the proposed agreement. Is the term “border measures” a reference to searching individual consumers' devices at airports? Is a reference to “safeguards” for ISPs to “encourage ISPs to cooperate with right holders” an attempt to shift the balance of rights and responsibilities under DMCA safe harbors?

These are some of the most pressing questions that are raised when it comes to ACTA, but they're certainly not the only ones. While in a situation as opaque as this one, it's critical to seek out what may be intentionally hidden in the unstated implications of the language, as well as the unintended consequences of broad language.

But that doesn't mean that the face value of the language that's there should be ignored, either. And that face-value language, compared with recent legislative initiatives in the US and elsewhere, suggests a highly coordinated, global effort to push certain provisions and language.

A comparison of what we've seen of ACTA with at least a couple of initiatives—the various versions of the PRO-IP Act and a draft report and proposed resolution out of the European Parliament—serves to illustrate how this particular agenda is being moved on multiple fronts, in multiple venues, with varying degrees of transparency.

First of all, these initiatives refer to each other explicitly—the resolution actively endorses ACTA, for instance. Secondly, there is a great deal of overlap in the particular goals they mention:

Focus on Trade

The recent focus of all of these initiatives, and many others (such as a recent Senate Finance Committee bill), is IP as a trade issue. This taps into a current of growing anxiety over the roles of China and Russia, among others, in the world market, and is bolstered by the large volume of infringing materials coming out of those countries.

By focusing on IP as a trade issue, the content industries can focus on foreign commercial infringers, far less savory and less susceptible to sympathy from the public than an average user of a p2p service or a Silicon Valley startup. If done properly, such initiatives will target a class of indisputable infringers. If done poorly, they sweep in with infringers of ill intent those who are merely using technology in unexpected ways.

Another, possibly less savory advantage of this focus is that it transfers the venue for discussing IP from IP-focused bodies to trade bodies. That means shifting the focus from forums dedicated to the balances that underlie copyright law, to those focused mostly on revenue generated by represented industries. All too often, content industries simply state their revenues as stemming from maximalist interpretation and enforcement of IP, without noting how much of their revenue depends on limitations and exceptions—to say nothing of the revenue of other industries like computers, consumer electronics, telecommunications, and others.

Exports and Transshipments

As part of the trade focus, all three documents mentioned above have, or at one point had, an emphasis on expanding what types of distribution are considered infringing under national laws. The PRO-IP act, for instance, makes it illegal to export goods that would have been infringing under US law, in addition to the current prohibition on importing would-be infringing goods. Earlier versions would also have made transshipments of goods illegal if they would have been violations of US law, even if they were legal in their source and destination countries (due, for instance, to a shorter copyright term).

Meanwhile, the report and proposed resolution also calls for extending TRIPS to prohibit unauthorized “export, transit, and transshipment operations.” The same paragraph in the report goes even further, suggesting that new forms of IP be recognized by TRIPS, as opposed to the seven types currently included.

The leaked discussion paper on ACTA, meanwhile, includes a single bullet point under the heading “Criminal enforcement” that states simply “imports and exports.”

Enforcement

The international focus on IP and trade is also clearly linked to enhancing enforcement efforts. Like shifting the focus away from domestic infringements, shifting the focus from defining infringement to “enforcing the law on the books” helps to avoid some of the more contentious questions about where copyright and trademark law are going, as their boundaries are stretched by industry-specific interests via both legislation and litigation.

However, the laws as they stand are still susceptible to shifts in interpretation, and even as they are currently interpreted, can often overreach. Enhancing enforcement of laws whose worth and interpretation are still being debated in the courts may simply raise the stakes on legitimate activities, chilling them out of existence.

PRO-IP created an IP Enforcement Coordinator to advise on and organize a “Joint Strategic Plan” on infringement. The bill also increases penalties for existing infringements of various sorts, and increases authorization of funding for IP enforcement grants, even, in some cases, amending the language of existing grants for computer crimes to place more of an emphasis on copyright infringement than, say, identity theft. Other funding sections require minimum numbers of IP-dedicated employees at various levels and offices within the Department of Justice.

The European Parliament's draft report and suggested resolution also calls for a single European entity responsible for coordinating anti-counterfeiting plans, and for the European Commission to

redefine without delay its priorities regarding the human resources…with the aim of ensuring that a sufficient number of officials are specifically involved in the fight against counterfeiting;

The ACTA discussion paper, meanwhile, encourages

Fostering of specialized intellectual property expertise within law enforcement structures…

as well as

Committment to sustain internal coordination among, and facilitate joint action by, domestic government agencies concerned with IPR enforcement through establishment of coordination bodies or other mechanisms.

Developing Countries

Developing countries all get particular mention in these trade and enforcement efforts. It's worth noting that developing countries are often the ones that are raising questions about further heightening of IP standards in bodies like WIPO. These countries, often faced with different levels of educational and communications infrastructure, have vigorously advocated for balancing IP rights with exceptions and limitations.

The enforcement agenda, meanwhile, calls for providing “assistance” to developing countries in developing their IP enforcement capacity.

PRO-IP's Joint Strategic Plan is required to:

include programs to provide training and technical assistance to foreign governments for the purpose of enhancing the efforts of such governments to enforce laws against counterfeiting and infringement.

The Draft Report

Calls on the Commission and the Member States to develop specific measures, backed up by appropriate financial coverage, in favour of developing countries…


is of the view that special measures are required in order to strengthen coordination between customs, judicial, and police authorities and to encourage the harmonization of the laws of [emerging] countries with those of the European Union;

The ACTA Discussion Paper, meanwhile, includes this iten:

Capacity building and technical assistance in improving enforcement, including training for developing country parties to the agreement and training for third countries;

In each of these cases, developed countries are offering, in the form of assistance, their particular methods and interpretations of combating infringement. In the best of all possible scenarios, this assistance will also take into account local resources and conditions, as well as rational differences in how IP law is implemented in different countries. However, this world, on occasion, fails to be the best possible.

Internet Provisions

Although the higher-level headings on each of these efforts hold to the counterfeiting and commercial infringement lines, each still impacts the new modes of distribution on the Internet. PRO-IP, as I noted before, contains explicit references to funding state and local law enforcement efforts on Internet-based copyright infringement.

The Draft Report recommends “takes the view that a more effective suppression of counterfeiting should take due consideration of the prominent role that the Internet has acquired…”; the discussion document on ACTA has a whole section set aside for “Internet issues” of various sorts—issues which, the USTR has confirmed, will be discussed in later ACTA meetings.

Public / Private Cooperation

Finally, there are also recurring calls for industry involvement in IP enforcement efforts.

Earlier versions of PRO-IP called for government enforcement through civil infringement actions.

The Draft Report calls for “better synergies with the private sector” in anti-counterfeiting actions, as well as for industry groups to provide “support and assistance” to European institutions.

The ACTA discussion draft advocates “public/private advisory groups,” as well as provisions for sharing information between officials and rightsholders. A different tack on public/private cooperation is hinted at in references to efforts to “encourage ISPs to cooperate with right holders in the removal of infringing material.”

The fact that these initiatives are being spearheaded by the content industries themselves around the world is telling. Many of the provisions sought by the industry in earlier versions of PRO-IP, for instance, were actually opposed by those in the Justice Department who would be tasked with implementing them. Increased industry involvement in the criminal enforcement process should be handled with extreme caution, lest the parochial interests of one particular industry suddenly become official government policy.

Other concerns with creating private structures within which IP controversies are settled is that they will often exclude individuals or small players from their terms; or that the privately-created structures will lack the transparency and redress available under public authorities.

In a multi-pronged effort like this one, the different initiatives can support and lend credibility to each other, and where one has the ability to go further than the others on some policy proposal, the more extreme position is bolstered by the parallel language in the more nuanced, general, or moderate version.

The potential hidden implications of ACTA are immense, and have captured their share of headlines. But even should it be revealed that these worst case scenarios don't come to pass, the scrutiny of the agreement should not slacken. Even if a provision isn't as alarming or catchy as searching iPods at the border, it still has the potential for far-reaching consequences, intended or not. ACTA, and agreements like it, will be discussed for quite a while to come, and may well become law under other names. Regardless of the way that it is packaged, consumers and citizens should remain vigilant to the measures that are proposed, to ensure that their rights are preserved.