Michael Geist's Timeline of the development of the Anti-Counterfeiting Trade Agreement (ACTA). For more, visit michaelgeist.ca.
Created by michaelgeist on Nov 16, 2009
Last updated: 06/30/10 at 09:05 AM
Tags: acta anti-counterfeiting trade agreement copyright
Mounting opposition to the agreement from the developing world, particularly powerhouse economies such as India, China, and Brazil, is attracting considerable attention. The public opposition from those countries - India has threatened to establish a coalition of countries against the treaty - dramatically raise the political stakes and place Canada between a proverbial rock and hard place, given its close ties to the U.S. and ambition to increase economic ties with India and China.
A talk I gave earlier this month at a conference on ACTA at the American University, Washington College of Law.
Last week, I had the honour of delivering the opening keynote address at a conference on the Anti-Counterfeiting Trade Agreement held in Washington. The event brought together over 90 academics, practitioners and public interest organizations from five continents at American University Washington College of Law. The resulting papers are among the most comprehensive anywhere on the implications of ACTA for countries around the world.
The agenda for the ninth round of ACTA talks scheduled for Lucerne, Switzerland from June 28 - July 1st. All the major issues - civil enforcement, criminal provisions, Internet issues, and border measures - are on the agenda.
The Government of India came out forcefully against ACTA this week in an intervention at the World Trade Organization. The India position, which may well reflect the views of other ACTA-excluded countries, demonstrates that ACTA is emerging as a contentious political issue that extends well beyond civil society and business groups concerned with the agreement.
Three major U.S. technology industry groups have jointly spoken out against ACTA. The Consumer Electronics Association, TechAmerica and the Computer & Communications Industry Association plan to oppose the current ACTA draft.
With the Canada - European Union summit underway this week, the European Parliament has just passed a resolution that calls on Canada to support even greater ACTA transparency and to shift the negotiations to an international organization such as WIPO.
IP Watch reports that an Indian government official has acknowledged that India was not asked to participate in the ACTA negotiations and that it is concerned that the text is out of sync with international law.
As the ACTA negotiating countries promised, a draft consolidated text was released earlier today. Unlike the earlier leaked version which provided specific attribution to country positions, this official version has removed references to those positions, so the text does not state who supports which version of the text.
The New Zealand round of ACTA negotiations concluded earlier today with participants promising to release the draft text next week. This obviously represents a major new development that reflects the mounting global pressure for greater transparency that built in the weeks leading up to the negotiations. The joint statement also confirms that the next round of negotiations will take place in Switzerland in June.
The U.S. Trade Representative issued a release just prior to the launch of the New Zealand round of ACTA negotiations that has left no doubt that the U.S. is the biggest barrier to official release of the ACTA text. The full text of the release is couched in terms of improving transparency, but is really a thinly-veiled shot at the European Union's public demands for release of the text.
Ten civil liberties and library groups have written to the USTR to express concern over ACTA provisions.
The European Parliament today overwhelming approved a resolution on ACTA calling for transparency and raising concerns about substantive elements in the treaty such as the prospect of three strikes and personal border searches. The final vote was 633 in favour, 13 against, and 16 abstentions.
The Dutch Minister of Economic Affairs Van der Hoeven has issued a release calling for ACTA transparency. Van der Hoeven adds that a three-strikes system is unacceptable.
In an important new leak from the Netherlands, a Dutch memorandum reporting back on the Mexico ACTA negotiation round names names, pointing specifically to which countries support releasing the text and which do not (note that the memo does not canvass everyone - Canada, Australia, and New Zealand are known to support transparency but are not named in the memo).
Peter Hustinx, the European Data Protection Supervisor, has issued a 20-page opinion expressing concern about ACTA. The opinion is a must-read and points to the prospect of other privacy commissioners speaking out. Moreover, with the French HADOPI three strikes law currently held up by its data protection commissioner, it raises questions about whether that law will pass muster under French privacy rules.
Several months after a European Union memo discussing the ACTA Internet chapter leaked, the actual chapter itself has now leaked. First covered by PC World, the new leak fully confirms the earlier reports and mirrors the language found in the EU memo. This is the chapter that required non-disclosure agreements last fall.
A brief report from the European Commission authored by Pedro Velasco Martins (an EU negotiator) on the most recent round of ACTA negotiations in Guadalajara, Mexico has leaked, providing new information on the substance of the talks, how countries are addressing the transparency concerns, and plans for future negotiations.
The summary statement from the Mexico ACTA talks has been posted online. As predicted, it is a bland statement confirming discussions on civil enforcement, border measures, and Internet issues. It also includes the usual discussion around transparency and the desire to conclude ACTA in 2010.
NDP MP Charlie Angus used the launch of the ACTA talks in Mexico to issue a four-page letter to International Trade Minister Peter Van Loan demanding answers on ACTA. The letter challenges the government's secretive approach on ACTA and delves into a wide range of substantive issues including the prospect of mandated DMCA-style legislation. Angus also held a press conference and issued a release on the need for more openness on the ACTA talks.
The UK Liberal Democrats have issued a press release calling on the government to release the details of the Anti-Counterfeiting Trade Agreement.
The next (seventh) round of ACTA negotiations is scheduled for Guadalajara, Mexico next week. The agenda has now been posted, revealing that the meeting will be the longest yet, with three and a half days devoted to the civil enforcement, border measures, and Internet issues. There is also an hour scheduled for the ongoing discussion on ACTA transparency.
The video of the often-contentious ACTA debate hosted by Google in Washington earlier this week has been posted online.
The UK Government discusses the lack of transparency in an EU access to information request:
"More broadly with respect to ACTA the UK considers that transparency is crucial to ensure the legitimacy of the agreement and to stop the spread of rumours. We believe the lack of transparency is unhelpful and do not believe that it is in the public interest."
New Zealand MP Clare Curran has posted on ACTA, arguing that "in the interests of transparency and public interest, the New Zealand Government should reveal the text of recent secret discussions in South Korea on the Anti-Counterfeiting Trade Agreement." Meanwhile, UnitedFuture leader Peter Dunne has called on the Government to release details of the recent international negotiations on ACTA.
The European Commission analysis of ACTA's Internet chapter has leaked, indicating that the U.S. is seeking to push laws that extend beyond the WIPO Internet treaties and beyond current European Union law (the EC posted the existence of the document last week but refused to make it publicly available). The document contains detailed comments on the U.S. proposal, confirming the U.S. desire to promote a three-strikes and you're out policy, a Global DMCA, harmonized contributory copyright infringement rules, and the establishment of an international notice-and-takedown policy.
Senators Bernie Sanders (I-VI) and Sherrod Brown (D-OH) have written to USTR, asking that the ACTA text be made public.
"Outcries on the lack of transparency in the ACTA negotiations are a distraction."
The ACTA negotiating countries have released a joint statement on the key issues under discussion. The document, which is presumably an attempt at transparency, is consistent with the various leaks regarding the content of the treaty, including the treaty structure, a de minimus provision, and the Internet provisions such as ISP liability and anti-circumvention legislation. The document notably states the negotiations "shall be concluded in 2010."
Public Knowledge and KEI have released a public letter expressing concern with the substance of ACTA.
Online at www.international.gc.ca/trade-agreements-accords-commerciaux/fo/seoul-seoul.aspx
The Internet chapter was the key issue for discussion. The draft text, modeled on the U.S.-South Korea free trade agreement, focuses on following five issues:
Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.
A requirement to establish third-party liability for copyright infringement.
Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.
Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.
Rights Management provisions, also modeled on U.S. free trade treaty language.
Despite the efforts to combat leaks, information on the Internet chapter has begun to emerge.
The U.S. government has made the Internet provisions available for review to a select group of insiders. KEI has all the details on who got access and under what conditions.
Online at: www.ustr.gov/trade-topics/intellectual-property/anti-counterfeiting-trade-agreement-acta/5th-round-acta-negotiati
Discussions focused on International Cooperation, Enforcement Practices and Institutional Issues (see April 6, 2009 ”ACTA Summary of Key Elements Under Discussion”). Participants also continued discussions on transparency matters, including providing information to stakeholders and the interested public. Participants agreed to release draft agendas before all subsequent negotiating rounds.
A coalition of leading library, civil rights, and technology companies have written to the U.S. government to urge it to drop the Internet provisions from the Anti-Counterfeiting Trade Agreement.
Australia, Canada, the European Union and its Member States, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States today announced that they are moving forward on the negotiation of an Anti-Counterfeiting Trade Agreement (ACTA) to step up the fight against global counterfeiting and piracy.
IP Watch reports on this week's European public consultation on ACTA. European officials confirmed that ACTA is a response to the difficulty of promoting an IP enforcement agenda at the WTO and WIPO. The officials also highlighted some substantive divisions between the negotiating partners. Two in particular jump out - first, the U.S. is seeking anti-camcording legislation similar to the one passed in Canada in 2007, however, there is some opposition to the proposal in Europe. Second, Europe would like an expansive view of intellectual property, to include both patents and geographic indications within ACTA's ambit. At the Canadian ACTA consultation earlier this month, Canadian officials made it clear that they would like to limit ACTA to copyright and trademark.
European officials also supported the potential participation of additional countries within the negotiations. I recently argued that developing countries should seize that open invitation to ensure that ACTA better reflects their interests and a more global perspective on IP enforcement.
Wikileaks has posted additional original ACTA documents, including draft language for several sections of the treaty. The leaked documents are consistent with earlier reports on the Enforcement of Intellectual Property Rights Chapter.
The U.S. government denies requests for access to ACTA documents on national security grounds but promises to review its approach.
The European Parliament passes a resolution calling for the public availability of all ACTA materials. In particular, it states:
Acting in accordance with Article 255(1) of the EC Treaty, the European Commission should immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available.
The justification for the language is:
The Anti-Counterfeiting Trade Agreement (ACTA) will contain a new international benchmark for legal frameworks on what is termed intellectual property right enforcement. The content as known to the public is clearly legislative in character. Further, the Council confirms that ACTA includes civil enforcement and criminal law measures. Since there can not be secret objectives regarding legislation in a democracy, the principles established in the ECJ Turco case must be upheld.
Negotiations on the Anti-Counterfeiting Trade Agreement resume soon, but as the discussions drag on, details on the proposed treaty are beginning to emerge. Obtaining information through official channels such as Freedom of Information requests has been very difficult; however, there is little doubt that lobby groups have been privy to inside information and so reliable sources have begun to sketch a fairly detailed outline of the proposed treaty.
There is some good news from the details that have started to emerge. First, the treaty is far from complete as there are six main chapters and some key elements have yet to be discussed. Moreover, it is clear that there is significant disagreement on many aspects of the treaty with the U.S. and Japan jointly proposing language and many countries responding with potential changes or even recommendations that the language be dropped altogether.
If that is the good news, the bad news is that most other fears about the scope of ACTA are real. The proposed treaty appears to have six main chapters:
Initial Provisions and Definitions;
Enforcement of IPR;
International CooperationEnforcement Practices;
Institutional Arrangements; and
Most of the discussion to date has centred on the Enforcement of Intellectual Property Rights chapter. As for the other chapters, the U.S. has supplied some proposed definitions and Canada supplied a "non-paper" on the institutional arrangements once a treaty is concluded that calls for the creation of an "ACTA Oversight Council" that would meet each year to discuss implementations, best practices, and assist other governments who are considering joining ACTA.
The work on Enforcement of IPR is broken down into four sections:
criminal enforcement, and
Rights Management Technology/the Internet.
The Civil Enforcement proposals call for the availability of civil judicial procedures for the enforcement of any intellectual property right, though some countries would like this limited to copyright and trademark. Parties to the treaty would be required to implement procedures that include the availability of statutory damages for copyright and trademark infringement (some countries would like this to be optional, while the U.S. would like the damages provisions expanded to patent infringement) as well as court costs.
Additional required remedies include orders to destroy the infringing goods without compensation. The proposals also call for significant mandated information disclosure, including ordering alleged infringers to disclose information regarding any person or third parties involved in any aspect of the infringement (some countries want this deleted and others are seeking to preserve privacy protections).
The Border Measures proposals are also still subject to considerable disagreement. Some countries are seeking de minimum rules, the removal of certain clauses, and a specific provision to put to rest fears of iPod searching customs officials by excluding personal baggage that contains goods of a non-commercial nature. The U.S. is pushing for broad provisions that cover import, export, and in-transit shipments.
The proposals call for provisions that would order authorities to suspend the release of infringing goods for at least one year, based only on a prima facie claim by the rights holder. Customs officers would be able to block shipments on their own initiative, supported by information supplied by rights holders. Those same officers would have the power to levy penalties if the goods are infringing. Moreover, the U.S. would apparently like a provision that absolves rights holders of any financial liability for storage or destruction of the infringing goods.
The Criminal Enforcement proposals make it clear that the U.S. would like ACTA to go well beyond cases of commercial counterfeiting. Indeed, their proposal would extend criminal enforcement to both (1) cases of a commercial nature; and (2) cases involving significant willful copyright and trademark infringement even where there is no direct or indirect motivation of financial gain. In other words, peer-to-peer file sharing would arguably be captured by the provision. The treaty would require each country to establish a laundry list of penalties - including imprisonment - sufficient to deter future acts of infringement. Moreover, trafficking in fake packaging for movies or music would become a criminal act as would unauthorized camcording.
All of these provisions are obviously subject to change since the treaty is still very much a work-in-progress. This may sound repetitive, but citizens of the many countries involved in the ACTA negotiations should not have to rely on leaks and speculation to learn what their governments are proposing. All governments should support a more transparent process that begins with full public disclosures of drafts as well as more robust public consultation and participation.
U.S. seeks delay in March 2009 negotiation session to allow for transition at the USTR.
While the Canadian government has dutifully followed the U.S. line on ACTA with bland releases following each of the four 2008 negotiation sessions, newly obtained documents under the Access to Information Act reveal that the Canadian delegation may be speaking out on some of the public concerns that have been raised around transparency and the exclusion of many countries from the negotiation process. The documents include several noteworthy revelations:
First, the documents confirm that the leaked ACTA document from last year was indeed the ACTA Discussion Paper distributed among governments. At the time, there was some question as to whether this was an industry wish-list or a government document. The Canadian documents confirm that this was a government document, a suggested intervention notes that "we would like to raise the issue of communications. As you all know by now, the ACTA Discussion Paper has been leaked . . . "
Second, the documents reveal that Canada submitted two "non-papers" to the other countries in advance of the first round of negotiations last year. The two papers focused on (1) institutional and procedural issues to be addressed during the negotiations and (2) institutional issues following the negotiation of ACTA.
Third, the documents include suggested interventions for the Geneva meeting last June.
The suggestions reveal that, contrary to publicly stated positions on the Canadian ACTA FAQ that the process has not been kept from the public and that excluding other countries makes sense, Canada may be saying something different around the negotiation table. Proposed interventions include:
Canada is still committed to developing an ACTA which will contribute to addressing the global problem of counterfeiting and piracy, taking into account each partner's different interests and domestic systems.
We would also like to reiterate at this point the importance of considering the interests and needs of potential future ACTA partners in the context of our formal negotiations.
We have also held public consultations on ACTA in April and received around 30 submissions. We are currently still analyzing the comments received, but after a quick overview, we noted that the issue of transparency in the formal negotiation process is important for many of our stakeholders. Stakeholders have also requested additional information on the scope of the proposed ACTA, as well as further information on why the Agreement is being negotiated in this manner, as opposed to in existing multilateral fora such as WIPO or the WTO.
The briefing documents conclude with an indication that Canada would be interested in hosting an ACTA meeting in the coming year. While the document suggested Fall 2008, it does not appear that that offer has been accepted, though a Canadian-based round of ACTA negotiations could be on the agenda for 2009.