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The United States Trade Representative (USTR) and its negotiating partners today released the near-final draft of the Anti-Counterfeiting Trade Agreement (ACTA). This text, while similar to the last draft leaked in August, has a few notable changes, most of which make the text far less problematic.
First, the provision requiring Internet Service Providers (ISPs) to disclose the identity of alleged infringers now contains a balancing provision. It states that procedures to disclose such information “shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.”
Second the language on circumvention of digital locks does not require that countries prevent circumvention of access controls. Also, [The latest draft still contains the requirement to prevent circumvention of access controls, but this requirement has been moved to a footnote.] The number of devices that would be ensnared within the ban on circumvention is limited. The current draft focuses on devices that are “primarily designed” for circumvention or have “only limited commercially significant purpose other than” circumvention. The previous draft had much broader language that would have allowed general-purpose technologies to be treated as circumvention devices if they were marketed as permitting circumvention. Importantly, the text does not include a requirement that circumvention be treated as an independent offense from infringement—a critical difference between this version and older ones that would have run afoul of US caselaw.
Third, the chapter on enforcement in the digital environment now extends to trademarks. The previous draft had limited such enforcement to copyrights. What effect this change will have on US trademark law and policy warrants further analysis.
Like the previous draft, the provisions on secondary liability and ISP safe harbors have been almost eliminated. However, the document still allows for actions against third parties throughout, "where appropriate." There is also a mention of promoting “co-operative efforts within the business community to effectively address” trademark and copyright infringement.
So, on first glance, it seems like the latest version of the ACTA text does less harm to consumer interests than previous drafts. We will have more analyses of the ACTA text in days to come.
Whatever the substantive effects of ACTA may be, the process used to develop the agreement leaves us feeling extremely uneasy. The ACTA process started off being completely closed to public interest input and it took a herculean effort to get the USTR to listen to our concerns. The agency, to its credit, did open up and work with us in improving the more egregious portions of the text. Even then, the process was based on consultations with just a few public interest groups and did not allow for wider public participation.</p>
Furthermore, ACTA’s negotiation as a trade agreement is a cause for grave concern. Unlike the free trade agreements that deal with trade in goods and services and have a small chapter on intellectual property, ACTA’s entire focus is intellectual property. As such, the justifications for secrecy that may apply to traditional trade agreements, did not apply to ACTA. Yet, coloring it as a trade agreement allowed subversion of democratic process. ACTA should have been negotiated in a relatively more open and democratic forum such as WIPO.
The text of the agreement is not final yet, with countries not reaching agreement on whether the agreement will cover patents. Also, it is unclear if the USTR will invite public comment on the text. We will keep you posted.