What’s the next act for ACTA?

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Washington, D.C.—Last week negotiators held the eighth round of negotiations of the hotly contested Anti-Counterfeiting Trade Agreement (ACTA) in New Zealand. As a result of these negotiations, negotiators publicly released the previously confidential negotiating text for the first time. The negotiations have been plagued with leaks over the past several years, and non-governmental organizations have criticized both the Bush and Obama administrations for their failure to release the confidential text before now. The Office of the U.S. Trade Representative (USTR) released the 39-page ACTA text this week, which includes numerous brackets around provisions that remain under negotiation between the parties.

The question that we should now ask is: what is the next battle for ACTA? The answer is substantive intellectual property (IP). Taking transparency off the table will allow the negotiators and interested parties to focus on the substance of the ACTA agreement, rather than on the red herring issue of transparency. ACTA critics have focused mainly on rumors that the agreement would force changes to domestic U.S. law. However, it is possible for the U.S. to agree to high standards of IP enforcement in ACTA and remain within the parameters of U.S. domestic law. USTR negotiators have confirmed that they do not intend to agree to any provisions that would force changes to U.S. law. Indeed, USTR negotiators have stated publicly that the agreement will be consistent with U.S. law, which is one reason why the U.S. could not agree to the “three-strikes rule” for Internet piracy that is beyond the current scope of U.S. law.

When ACTA was first announced, the goal was to set a high standard of IP enforcement among like-minded and innovation-oriented countries. The critical issue now is to ensure that the ACTA agreement does not erode IP enforcement standards. The U.S.-Korea Free Trade Agreement (KORUS FTA), the most recent FTA to be concluded by the U.S. Government, set very high standards of IP protection and enforcement in the areas of copyright, trademarks, and civil, criminal, and border enforcement, among other areas.

The “gold standard” of international IP protection and enforcement includes not only the KORUS FTA, but also the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the U.S. Digital Millennium Copyright Act (DMCA), the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT), and the WIPO Performances and Phonograms Treaty (WPPT).

It is important that the final ACTA text does not dilute or erode the high IP standards set in the KORUS FTA, other recent U.S. free trade agreements, or these international treaties. It is critical that ACTA maintain those high standards and include crucial IP provisions, for example, such as mandatory ex officio authority for border officials, equitable damages for IP infringement, destruction of infringing goods, effective policies of Internet service provider liability and limitations on liability that apply to on-line digital infringement, mandatory provisions against circumvention of technological protection measures, and provisions protecting rights management information.

ACTA is an intellectual property rights (IPR) agreement aimed at combating counterfeiting and piracy. ACTA negotiators are from Australia, Canada, the European Union 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 IP protection and enforcement, to open markets, and to promote global trade. The next round of ACTA negotiations will be held in Switzerland in June 2010.

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.