October 22, 2008
I was working on a short article this morning that looks at some of the recent global governance conflicts over Access to Knowledge when I realized that it’s been a while since I’ve heard of new developments in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations.
Ever since Senators Pat Leahy (D, VT) and Arlen Specter (R, PA) voiced their concerns to the USTR and the Australian Department of Foreign Affairs and Trade let on that the future of the agreement might be at risk, my RSS feeds and email lists appear to have gone silent on the issue.
Even the USTR has not had anything to say since this October 10 statement (pdf) issued immediately following the Civil Enforcement negotiations meeting.
The best theory I can come up with (absent any evidence whatsoever) is that the trade representatives and negotiators have been a little busy lately dealing with the trade-related complications of the global financial crisis.
Anybody out there know what the USTR’s been up to these days or have new information about ACTA?
September 12, 2008
Haven’t written about ACTA in a little while, but I couldn’t help myself from responding to this piece on the Intellectual Asset Magazine website.
Taking a short-term perspective shared by many large IP owning firms, the author Joff Wild argues:
My view is that countries in which IP is a very valuable asset are perfectly entitled to get together to work out ways in which it can be better protected.
The problem with this argument, and with much of the ACTA proceedings thus far, is that the countries involved have not integrated the competing interests of stakeholders into the negotiation processes in an effective way.
Even if you, like Joff, are not compelled by the claim that ACTA will be bad for global governance, bad for developing countries, and bad for global equality (which it almost certainly will), it is crucial to recognize that many of the most important and innovative firms in the U.S. and Europe are also likely to suffer from this agreement.
Don’t take my word for it, though.
Check out this letter recently submitted by AT&T, Amazon.com, Computer and Communications Industry Association (CCIA), Consumer Electronics Association, eBay, Information Technology Association of America, Internet Commerce Coalition, NetCoalition, US Internet Service Provider Association, US Telecom Ass., Verizon Communications, and Yahoo! Inc.
The letter is addressed to US Trade Representative Susan Schwab and leaves no doubt that these Telecom and IT giants do not appreciate the cavalier IP extremism on offer from the ACTA proponents thus far (all emphases are mine):
We appreciate your objective of protecting the intellectual property of American
rightsholders from infringement overseas. However…there is a very real possibility that an agreement that would require signatories to increase penalties for “counterfeiting” and “piracy” could be used to challenge American companies engaging in online practices that are entirely legal in the U.S., that bring enormous benefit to U.S. consumers, and that increase U.S. exports.
…because ACTA risks having such an adverse impact on intermediaries operating
in full compliance with U.S. law, the negotiating process should be as open and
transparent as possible.
and last but not least:
…given the importance and complexity of the issues under discussion, we urge you
to proceed with the negotiations at a more deliberate pace. It is critical that there be
sufficient time to ensure that the agreement is in the broad national interest.
Unless Schwab, the USTR office, and other negotiating parties recognize this reality soon, the results of their well-intentioned actions will be bad for the Internet economy, bad for innovative industries, and generally bad for society as a whole.
If, as Wild puts it, ACTA faces “a long and tortuous path to ratification” that might be the best news yet about this half-baked proposition.
July 30, 2008
I.P. Justice has linked to a freshly leaked memorandum addressed to “ACTA Negotiators” from unnamed “Business Associations.”
The memo articulates positions consistent with the draconian enforcement measures sought by many content owners throughout the furtive ACTA process. In both its scope and tone, it also resembles quite closely the earlier submissions of comments by groups such as the RIAA, the International Trademark Association (ITA), and others.
The memo underscores the extent to which these organizations expect that the wealthy governments of the world will foot the bill for enforcing their private rights. It’s my understanding that in U.S. law, the financial and legal burden of enforcement of private rights traditionally falls on the rights holder. I’m pretty sure that’s why the government isn’t usually the one to sue you if you trespass on your neighbor’s backyard. In the brave new world envisioned by these business associations, suspected infringement of copyrights or trademarks would be sufficient to justify search, seizure and other forms of state intervention.
From where I’m sitting, that sounds an awful lot like a seriously invasive form of corporate welfare.
However, the memo also reveals one detail that the United States Trade Representative, the Canadian government, the European Commission, and other negotiating parties have declined to make public: the negotiations for ACTA are continuing – in secret – right now in Washington, D.C.!
In off the record conversations with government officials, I had been led to believe that late July was a target date for the second round of ACTA talks. However, there has been some misdirection and sleight of hand about exactly when and where these meetings would happen.
Turns out the ACTA negotiators from the U.S. (presumably members of the Office of the U.S.T.R.) do not mind passing such information along to “Business Associations” in a more timely and open manner.
As an interested citizen who submitted my own comments to the USTR about ACTA back in March, I find the USTR’s preferential treatment of corporations who support ACTA irresponsible and reprehensible.
The terms of the proposed agreement are too important for the future of the digital economy, global trade, the Internet, and international legal precedent for the negotiations to continue in secret.
As I’ve said before, this is no way to build a “new consensus” on the governance of trade in informational goods. Instead, it is a shameless tactic to railroad bad policies based on flimsy evidence and dubious intent.
I just got word that Australian trade officials are accepting comments on the next round of ACTA negotiations.
Predictably, their request for input from is inexcusably opaque. The announcement (link above) alludes to three topics: “border measures”, “civil enforcement”, and “institutional isssues” (I’m nominating that last one for the Max Weber Prize for lack of imagination by a bureaucrat).
Without more substantive public disclosure and debate of the topics under consideration in the ACTA negotiations, such public comments requests remain little more than a shadow play of actual democracy.
This is simply unacceptable given the scope of issues ACTA will address and their potential impact on the future of the Internet, the digital economy, global development, and law enforcement.
Small wonder, the Office of the US Trade Representative has not even bothered to request comments.
Hat tip: Kimberlee Weatherall
The interdisciplinary open-access journal, Knowledge Ecology Studies has published a short essay of mine about the proposed “Anti-Counterfeiting Trade Agreement” (ACTA) in their current volume.
My paper looks at some of the history behind ACTA and considers the most troubling aspects of the agreement.
As currently proposed by the United States (through the office of the U.S. Trade Representative), the European Commission, Switzerland, and Japan, ACTA threatens business interests, civil liberties, consumer rights and democratic governance.
If such an extensive laundry list of bad sounds improbable to you, I encourage you to read the essay (and contact me). The agreement could be signed within the next few months – unless sufficient opposition forms to alter its scope.
I’ll be writing more about ACTA (and other misguided attempts to impose overly-restrictive IP enforcement regimes) here in the coming weeks. In particular, I plan to analyze some of the economic and strategic reasons why more restrictive IP enforcement will not enhance innovation, market growth, or security. My sense is that the folks behind this treaty have either forgotten (or ignored) these realitie
Whether or not you have any interest in my essay, I highly recommend the other work in KE Studies. This issue includes an entertaining and thought-provoking interview with Bruce Sterling; a rigorous analysis of prize systems by Ron Marchant; and an important study (in French) on the impact of new restrictive IP regimes on access to HIV/AIDS anti-retrovirals in Morocco by Gaelle Pascale Krikorian, Kamal Marhoum El Filali, and Hakima Himmich.
(Photo credit: “Orange plug,” by nic0 (via Flickr). CC-BY-NC-SA)
April 26, 2008
The so-called Anti-Counterfeiting Trade Agreement currently proposed by the USTR and the EC has been put on hold until at least July. According to this recent posting to the IP Watch Blog by William New, the latest Special 301 Report issued by the USTR earlier today mentions ACTA, but Assistant USTR for IP Stan McCoy confirmed that the agreement will not be completed by the upcoming G8 Summit in Japan. Since the report just came out 8 hours ago, I will try to look at it more closely in the next couple of days and see what I can find of interest.
In the meantime, I have several reactions to this news. The reality is that USTR Susan Schwab’s previous statements that she hoped ACTA would be completed by the end of 2008 seem as though they were mostly bluster to begin with. If it takes trade reps years to hammer out a bi-lateral agreement, there was never much reason to suspect that a “plurilateral” agreement would get turned around within less than 12 months. This is true even when most of the negotiating parties agree ahead of time. Negotiations between half a dozen wealthy, powerful countries are bound to be difficult, drawn-out affairs. That has been the case historically and even a secretive, shrink-wrapped proposal like ACTA is not likely to reverse the trend. Railroading a complex legal document through even the least democratic of political processes is tough work.
That said, this raises the stakes for ACTA opponents to get the attention of elected government officials in advance of this summer’s G8 summit. It’s always good to work with a deadline…
(h/t Robin Gross)
Liza Porteus Viana filed a story with IP Watch yesterday that details a fascinating exchange about ACTA that took place at Fordham University’s annual Intellectual Property Law and Policy conference. Check out the whole article (that goes into detail about some other aspects of the USTR’s National Trade Estimates) or settle for the following very-long-quote:
USTR also is touting the multinational Anti-Counterfeiting Trade Agreement (ACTA) as a way to fill in enforcement gaps with the TRIPS agreement and other treaties. The language of ACTA, which was announced last fall (IPW, WTO/TRIPS, 24 October 2007), has not yet been released to the public – which has many consumer groups up in arms. USTR put a notice in the Federal Register soliciting comment on the agreement.
“Until you have economies of the world effectively cooperating together, it’s difficult to be as effective as law enforcement would like to be,” Victoria Espinel, who served as the first assistant US Trade Representative for Intellectual Property and Innovation, said last week during an intellectual property law conference at Fordham University in New York City. “It is very much the hope” of USTR and other participating countries “that more and more countries will join,” she added.
Eddan Katz, international affairs director at the Electronic Frontier Foundation, said the US “shouldn’t rush on this one.”
“In terms of combating piracy, this is the wrong instrument,” Katz said, arguing that it is ill-designed in terms of maintaining the integrity of the law and improperly puts enforcement responsibility in the hands of customs officials at airports.
Jamie Love, director of Knowledge Ecology International in Washington, D.C., argued that the US government is not being forthcoming enough on what exactly ACTA will do, since it has been more than five months since ACTA was announced and the text still has not been distributed publicly. “I think that’s also not helpful to the overall effort – the transparency issue,” Love said.
Steven Tepp, a policy planning adviser to the US Copyright Office who has been involved in some of the ACTA discussions going on at USTR, said he has been told that the document is subject to “special handling,” as it contains material dealing with other governments. “To the best of my knowledge, that document has not been given to anyone outside the US government,” he said, countering Love’s statement that some drafts have been circulated to “certain lobbying groups.”
A testy exchange erupted when Love asked Tepp – as a representative of the US government privy to some ACTA discussions – if he could meet with him to discuss the measure. Tepp agreed, until Love asked if he could bring other consumer groups and, perhaps, some media with him, so the broader public would know what’s going on.
“Jamie, please don’t manipulate it – you asked me for a meeting,” Tepp said. “I’m very happy to meet with you.”
Countered Love: “What I’m asking for, both from USTR and the Copyright Office, is to open up the process, have a meeting that is truly public.”
Katz then piped in, asking Tepp: “How big is your office? Can other people come? …There are multiple points of view.”
There’s a lot of amazing stuff to unpack here. First of all, Tepp’s assertion that ACTA text has not been distributed to anyone outside the U.S. government seems highly improbable. Consider the following: when you line up the text of the USTR’s ACTA Fact Sheet and the Australian DFAT’s discussion paper and the Canadian government’s Discussion Paper and the European Commission’s Fact Sheet the four documents practically match verbatim. I know these governments talk a lot, but I strongly doubt that such a consistent use of language, examples, and layout is a mistake. Clearly there are texts circulating. It’s only a question of which texts and how much information is being withheld from public scrutiny.
Secondly, the idea that industry lobby groups are not up to their elbows in this process is also blatantly absurd. Tepper emphasized that industry lobby groups do not have access to the latest drafts of the agreement. That may or may not be so. The truth of the matter is that his distinction is a red herring. Take a look at some of the most recent statements about ACTA made by members of the International Trademark Association (INTA) and International Chamber of Commerce (ICC):
“Expectations for ACTA are high. This proposed agreement has the potential to deliver significant improvements in establishing stronger international guidelines and standards, and providing governments with clear directives for action,” said INTA Executive Director, Alan C. Drewsen
“The governments that so far have agreed to engage in negotiating the new agreement have made a commitment to complete the process and we urge them to get started without further delay,” said Bob Wright, Co-Chairman of the ICC’s Business Action to Stop Counterfeiting and Piracy (BASCAP) initiative and Vice Chairman and Executive Officer, General Electric. “We recognize the work involved in completing an agreement of this magnitude, and we stand ready to work with the governments involved to move the agreement forward.”
I picked out these quotes from the an April article mentioning ACTA published by the AGIP News Service. What the statements reveal are several business leaders practically tripping over themselves to line up in support of this potential agreement. And the USTR wants us to believe that they only talked about the weather with these guys in their earlier meetings?
The background section of the Australian DFAT’s discussion paper suggests an alternative history: it appears that several industry lobby groups funded events like the 2004 Global Congress to Combat Counterfeiting in order to bring the government trade representatives’ attention to these issues. The question of whether the lobbyists have access to the latest round of emails floating around in the USTR’s office is academic and Tepper probably knows it. The point is that organiations like INTA, the ICC, and BASCAP have participated in ACTA from day one. To suggest otherwise is misleading.
March 24, 2008
A few other critical comments on the USTR’s proposed Anti-Counterfeiting Trade Agreement trickled in via email lists over the weekend. I thought I would provide a full listing of those I’ve hear about so far. Here they are in alphabetical order with links:
If anyone knows about others, let me know in the comments or via email (see my profile) and I’ll add them to this list.
Nate Anderson at Ars Technica files an entertaining story on Israel’s public comment in response to the International Intellectual Property Association’s (IIPA) “Special 301″ recommendations.
Basically, the IIPA is an corporate lobbying group that wields a great deal of influence over what the USTR eventually puts into the Special 301 reports. It also has a disproportionate say over which countries do or don’t wind up on the notorious “Watch List.” It doesn’t take a lot to wind up on the IIPA sh*t list: anything short of bending to every demand of the group’s corporate membership just about guarantees the the IIPA will tattle to the US Trade Reps.
In response, Israeli officials appear to have concluded that the IIPA (and by extension the USTR) have a tenuous grasp on reality.
Now there’s a surprise.
March 21, 2008
IP Justice, a self-described “international civil liberties organization that promotes balanced intellectual property laws and Internet policies that encourage innovation and creativity” led by Robin Gross, just posted comments on ACTA to its site. You can read them here.
IPJ zeroes in on the most glaring flaws with the ACTA proposal and process:
- No participation from NGO’s, the public, or developing countries
- ACTA would waste money on “tougher enforcement” measures don’t work
- Alternative IP regulations can stimulate innovation, markets, and legal IP use more effectively
- Negotiation on these issues belong in WIPO and the WTO TRIPS Council
The IPJ comments also suggest that the USTR extend the period for comments to allow greater participation by citizens and other civil society groups. All in all, I couldn’t agree more…