ACTA – An End-run Around WIPO

Following up on a pointer from Peter Evans in response to my last post, I came across this old announcement on the website of the US Trade Representative.

Turns out the US, EU, Japan and other wealthy nations have responded quite aggressively to the success of the Development Agenda at WIPO. Less than two weeks after the WIPO general assembly voted to make a permanent committee on the development agenda, the wealthy states countered with the creation of a new “Anti-Counterfeiting Trade Agreement” (ACTA).

Based on the trail of celebratory press releases (the USTR’s is here, the EC’s is here, and the International Trademark Association’s is here) and a highly un-informative fact sheet (PDF) from the USTR, this promises to be some spectacularly old wine in a new bottle. Everybody promises that this will bring an end to evils of piracy and will restore lost millions to poor, unfortunate industry executives. I’m sure the authors of the agreement are already lining up celebrity endorsements…

So, what does this mean for WIPO and the fate of the development agenda? Michael Geist blogged the original announcement back in October and he hits the nail on the head:

“Given the recent backlash at WIPO, the U.S. is avoiding the U.N. system. Instead, it has created a new counterfeiting coalition of the willing that includes the European Union, Japan, South Korea, Mexico, New Zealand, and Canada. Those countries yesterday simultaneously announced enthusiastic support for a new trade agreement with negotiations to begin next year. Indeed, International Trade Minister David Emerson’s announcement to the House of Commons brought the MPs to their feet.

This treaty could ultimately prove bigger than WIPO – without the constraints of consensus building, developing countries, and civil society groups, the ACTA could further reshape the IP landscape with tougher enforcement, stronger penalties, and a gradual eradication of the copyright and trademark balance.” (emphasis added)

And people wonder why the Doha Round of the WTO hasn’t gone anywhere? This is the ultimate in bad faith bargaining and deserves to be called much worse. Essentially, the wealthy OECD countries and a few of their friends have turned their backs on the possibility of building inclusive and accountable global institutions in favor of creating yet another regulatory thicket of privately negotiated strict IP enforcement rules. There are so many reasons that this is a bad idea that I don’t even know where to start.

To make matters worse, if we take the rhetoric of the USTR and the EC at face value, they are embracing an outmoded vision of the IP ecosystem in which “counterfeiting” (a.k.a. reproducing stuff) is inherently bad for business. This kind of moralizing and polarizing talk is counterproductive, but a moralizing and polarizing treaty between the most powerful and wealthy nations in the world would be a whole lot worse.

If there’s any silver lining to this cloud, it’s that the agreement doesn’t exist yet. I’ll say more in my next post about an opportunity to do something to prevent it.