Post

USTR Releases Brief ACTA Summary

April 6, 2009

Today, the US Trade Representative (USTR) released a summary of what's supposed to be in ACTA, the Anti Counterfeiting Trade Agreement. This is a nice step towards the transparency needed surrounding this potentially far-reaching international agreement.

Up to this time, the USTR had released only a scant handful of facts on ACTA of its own accord. A meeting in Washington provided a couple of details on some of the points mentioned in the earlier fact sheets and press releases, and a bit more information could be gleaned from document extracted via the ongoing FOIA process.

The most pertinent and substantive information, however, always seemed to come from various leaks, or from fact-gathering and analysis from other jurisdictions (most notably and specifically Prof. Michael Geist's work in Canada)

The summary released today by USTR confirms a lot of what was in those leaks providing the main subheadings of the topics we knew to be discussed in ACTA.

However, a number of things are not revealed in this document. First of all, the summary notes that as ACTA has not been finalized, there is no official draft, and that the various suggested portions of ACTA are subject to change. There may even be provisions not listed in this summary that could find their way in. It's understandable that an agreement being discussed isn't in final form, but that doesn't mean that we should throw up our hands in despair of ever knowing anything that will be in the agreement.

For instance, the topics of discussion are listed as just that—we are given “the draft structure of the agreement as discussed at this stage” –as though the topics under discussion fell from the sky as part of the natural order of things, and not as part of a multi-party discussion process. Since this is our USTR releasing information to us, why not hear what the US would like to see in the finalized agreement? What items are they pressing for? “IP Rights Enforcement in the Digital Environment” looks a lot like somebody's been suggesting that ISP secondary liability be expanded. If that's a US priority, I think we'd like to know.

However, transparency is simply a means to an end, and after that, it is the substance of the agreement that matters. And the specifics mentioned in this document maintain the causes for concern in that ACTA may hold ISPs and other conduits more liable for other's infringements; or that ACTA may be used as a spur to increase civil and criminal IP penalties beyond current levels or beyond reasonable expectations.

Moreover, the rationales behind ACTA and its proposed provisions aren't made entirely clear. The summary still only provides the generalities (albeit with a shade more nuance than in the earlier fact sheet) that have always accompanied the ratcheting-up of IP restrictions—”significant financial losses,” “hinders sustainable economic growth,” “risk to consumers.” The provisions suggested for ACTA are a lot more specific—providing authority for customs officials to seize shipments of goods for example. It would be useful for each of these proposals to have some specific, real-world demonstration of its need, e.g. numbers of shipments of infringing goods that customs inspectors had to let by due to inadequate authority.

Having this summary out on paper, and actually created by the USTR is a good first step. But it's only worthwhile if that step is followed by others in terms of transparency, and if that transparency helps lead to a rational, balanced IP policy.