Tuesday, February 03, 2009

Peeking at ACTA

KEI has unearthed some proposed ACTA documentation, with excerpts available here.

Jamie Love has a piece on it in the Huffington Post here.

Michael Geist has some analysis about where this is going here.

It looks pretty scary. And its just the tip of a potential iceberg.

For example, the proposals as quoted would criminalize some common behavior that is currently legal in Canada, even if there is " “no direct or indirect motivation of financial gain” and some of the targeted behavior might well otherwise be fair dealing.

The proposals would apparently empower a border official to provide potentially extremely confidential information to "rights holders" concerning shipments of goods that may turn out to be perfectly legitimate grey market or parallel imports. When expert IP lawyers and even the Justices of the Supreme Court of Canada can't agree on the time of day as to whether some goods are legitimate grey goods or infringing goods (e.g. Toblerone chocolate bars), how is a border guard supposed to know the difference? This is why we have Courts to deal with such matters, why we may need legislative reform, and why we most certainly wouldn't want to delegate such extraordinary powers to border officials.

A case in point is that some countries are trying to "to increase enforcement on goods in transit and blur the line between generic and counterfeit medicines at international organisations such as the Brussels-based World Customs Organization, the World Health Organization, and the Universal Postal Union" according to the reliable IP-Watch. Generic v. counterfeit? Parallel v. pirate? It's absurd to allow border officials to make these determinations.

Let's see if President Obama believes in "change" on this front both in terms of the the Americans' apparently intended substance of the agreement, and in the transparency of the negotiating process itself.


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