Tuesday, October 23, 2007

"ACTA" - a New Plurilateral Policy Platform

A potentially important announcement from Washington, Brussels (EU), and Ottawa (and doubtless elsewhere) today re a proposed Anti-Counterfeiting Trade Agreement - “ACTA.”

According to US Ambassador Schwab:
The ACTA would complement the Administration’s work to encourage other countries to meet the enforcement standards of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organization, and to comply with other international IPR agreements. It will not involve any changes to the TRIPS Agreement. Rather, the goal is to set a new, higher benchmark for enforcement that countries can join on a voluntary basis. The negotiations represent a cooperative effort by the governments involved, and will not be conducted as part of any international organization.

The list of currently interested countries read a bit like preaching to the choir:
[US] Trading partners engaged in discussions so far include Canada, the European Union (with its 27 Member States), Japan, Korea, Mexico, New Zealand, and Switzerland.
Most of these countries have adequate and effective levels of substantive law and enforcement mechanisms.

So - these questions arise:

• What’s this really about?
• Will the US “insist” on ratcheting up substantive law - for example by defining downloading, “making available” and DRM/TPM circumvention as “piracy”?
• Will the US and EU insist that all countries have a common copyright term - for the sake of better and more symmetrical “enforcement”?
• Will legitimate parallel imports get caught, like dolphins in a drift net?
• Where are WIPO and WTO in this?
• Is this an exercise in plurilateral policy laundering?

There is clearly potential for positive developments here. Indeed, counterfeiting involving trade-marks is morally, economically and even criminally wrong - especially in the thankfully rare cases when health and safety are involved. Commercial scale copyright piracy is also quite wrong - although certain elements in the record industry apply the word “piracy” rather promiscuously to include all manner of private copying that they cannot control - thereby labelling hundreds of millions of ordinary internet users as “pirates.”

But some rights owner lobbyists and sympathetic officials have a tendency to conflate “effective action” on enforcement issues with substantive law augmentation. We saw an example of this in the Grokster case in the US Supreme Court, and I was asked to write an “amicus” brief on it.

What we don’t want to see are excessive barriers to the flow of legitimate goods, including parallel imports - which are legitimate by definition. There is a danger that customs officers and even lawyers won’t be sure of the difference in some cases. If that happens, millions of dollars of legitimate goods may get tied up or cost more to clear at a border. And we don’t want to see a backdoor mechanism to increase substantive laws in ways that threaten Canadian cultural and economic sovereignty.

And we don’t want to see a good cause become the pretext for bad laws. Think 9/11. The Bush administration has tried to brand many critics of its excessive post 9/11 incursions on civil liberties as soft on terrorism. And we have seen the results ranging from common inconvenience at the boarder to tragedy. Will critics of potentially excessive ACTA measures be labelled as proponents of counterfeiting and piracy, and enemies of artists and creators?

There are also the dangers of a plurilateral policy platform dominated by the US and to a lesser extent the EU - especially since the often too low but at least established minimal institutional transparency of WTO and WIPO won’t be there. We may get a fait accompli that Parliament will be asked - or told - to implement. Or some would say “rubber stamp.” That’s how policy laundering happens - things that couldn’t get of the ground domestically are agreed upon far away by a few senior bureaucrats and politicians - and are brought home effectively as domestic law. All democratic countries should be worried about this.

BTW, here's a rather balanced British view from one of my favourite felines, the IPKat.

And here's a take from IP-Watch on the formidable forces pushing this initiative including Mary Bono - who famously told Congress that:
Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. … As you know, there is also [Motion Picture Association of America president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.
This may provide a clue as to where these talks may be headed...

Update: Here's Minister David Emerson jumping on the bandwagon.


No comments:

Post a Comment