Acting on ACTA

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Last week, the Office of the U.S. Trade Representative (USTR) released new information about the high-profile and hotly debated Anti-Counterfeiting Trade Agreement (ACTA). The entire text was also leaked last week for the first time by the French digital rights group La Quadrature du Net, despite the official designation of the text as confidential between the ACTA negotiating parties. ACTA is an intellectual-property rights (IPR) agreement aimed at combating counterfeiting and piracy. ACTA negotiators are from Australia, Canada, the EU and its 27 member states, Japan, Mexico, Morocco, New Zealand, the Republic of Korea, Singapore, Switzerland, and the United States. USTR estimates that these countries make up half of all global trade. Thus, ACTA is a high-stakes agreement that has the potential to have a positive impact on IPR protection and enforcement, opening markets, and promoting global trade for U.S. businesses. The next round of ACTA negotiations will be held in New Zealand starting on April 12, 2010.

USTR’s March 2010 “ACTA Fact Sheet” notably includes a new section entitled “What IS NOT the goal of ACTA.” In this section, USTR attempts to debunk some of the myths and misinformation that have grown around ACTA. First, ACTA is not meant to raise substantive standards of IPR. USTR sources have confirmed that USTR does not intend to agree to any provisions that would exceed current U.S. legal standards, even if some of the ACTA partners ask to include provisions that exceed U.S. law. Second, ACTA does not focus on private, non-commercial activities of individuals. Critics have alleged that ACTA will give the authority to impede on civil liberties or to search personal belongings at the borders or confiscate personal electronic devices. One particularly sensitive allegation by critics is that ACTA would require Internet Service Providers (ISPs) to terminate accounts on the basis of accumulated allegations of IPR infringement (the so-called “three strikes’ rule”). Several USTR sources have stated that they do not intend to agree to include the three strikes’ rule in ACTA, as such a provision would exceed the standards of current U.S. law.

“Transparency” is the buzzword used most frequently with ACTA, with various non-governmental organizations and individuals calling for the immediate release of the ACTA negotiating text. USTR noted last week in its briefing that ACTA negotiators are committed to improving transparency in the negotiating process. Yet USTR also noted the need to preserve “negotiators’ ability to candidly discuss the various proposals under consideration.” ACTA negotiators have tried to respond to criticism by providing information about the agreement through summaries, agendas, and press releases. It is crucial for negotiators to be able to discuss their positions with one another in confidence, including exchanging drafts of written proposals and counter-proposals without public scrutiny. ACTA negotiators continue to struggle with maintaining their ability to negotiate in confidence, while trying to respond to public outcry for greater transparency. With the leak last week of the full ACTA negotiating text, perhaps the controversy over transparency will subside somewhat. Critics should be able to see for themselves what is, and is not, in the text. It is clear, based on a review of the leaked text, that ACTA will likely resemble many of the past free-trade agreements that USTR has negotiated with numerous other trading partners that have been approved by Congress and are currently in force around the world.

USTR sources have explained that ACTA will be negotiated as an “executive agreement” under President Obama’s executive authority, rather than as a “treaty,” which would require Congressional approval. The Administration has the option of negotiating ACTA as an executive agreement, and there are no requirements to negotiate the agreement with Congressional approval. As an executive agreement, USTR’s intention is to negotiate all provisions within the bounds of current U.S. law.

It is clear that ACTA will not exceed the legal boundaries set by Congress through U.S. laws. ACTA will not impinge on civil liberties or free speech. ACTA will not cause people to lose their mp3 players and i-pods at the borders. ACTA will not require a three-strikes rule that would force ISPs to cancel Internet accounts of repeat infringers. In fact, if ACTA is completed successfully as planned by the end of 2010, it could help countries to more effectively stop harmful products such as fake toothpaste or dog food from entering the stream of commerce, could help bring down organized crime rings who fund criminal activity by selling pirated or counterfeit products, and could provide established tools such as technological protection measures or notice and takedown to prevent the illegal downloading of music or movies on the Internet in violation of authors’ or musicians’ rights. Many positive results can come out of ACTA if the negotiators are simply able to do their jobs and continue their discussions in confidence and without revealing their negotiating positions to the general public, as is the standard accepted practice in trade negotiations among countries.

Jennifer Choe Groves is a former senior White House trade official, who served in the Office of the U.S. Trade Representative under Presidents Barack Obama and George W. Bush.