Many intellectual property owners and users do not realize that in 2007 the United States agreed to participate in controversial international negotiations toward a proposed Anti-Counterfeiting Trade Agreement (ACTA). The negotiations—which include representatives from Australia, Canada, the European Union, Japan, Jordan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United Arab Emirates—were conducted in Geneva during the first week of June to discuss proposals.
ACTA reportedly will establish an international intellectual property enforcement framework to counteract large-scale infringement, piracy and counterfeiting activities related to intellectual property, such as prescription drugs, trademarks and recorded media. The U.S. Trade Representative has stated that the negotiations will be focused on three main goals: strengthening international cooperation on intellectual property matters, defining best practices and improving current practices and establishing a strong legal framework for intellectual property rights enforcement.
But ACTA has drawn much criticism because it has been shrouded in secrecy and because intellectual property policy is being negotiated outside of the realm of the legislature and other established international settings such as the World Intellectual Property Organization and the World Trade Organization. Outside observers have been provided with little indication as to exactly what it will say and how it will attempt to address the stated goals. Meanwhile, speculation and fears have grown about the provisions that will be included. Even more troubling for some is the expectation that once the agreement is finalized, its text will be locked, and other nations will be pressured into agreeing to its terms without having been able to participate in the negotiations.
But some information has come to light about what ACTA might say. Soon after the latest round of negotiations a document was leaked which purports to be a "discussion paper" used by the U.S. Trade Representative in the negotiations. Many of the proposed provisions are unremarkable, such as the provision of IP enforcement training for developing countries, international efforts to raise consumer awareness of IP rights and authority to impose criminal penalties for IP infringement.
Other proposed provisions in the discussion document will potentially have a greater impact -- particularly in the area of Internet and border enforcement. For example, the document mentions the establishment of an international legal regime similar to the U.S.'s Digital Millennium Copyright Act, where safe harbors are established for Internet Service Providers (ISPs) who cooperate with rights holders in the removal of infringing content from their systems. Concerned commentators have reported that ACTA may require ISPs to institute network-level filtering, which would require reviews of Internet communications and raise privacy concerns. The paper discusses banning the circumvention of technological protection measures, which, in addition to helping to protect against copying, likely would affect online anonymity systems and allow intellectual property owners to identify infringers more easily. The document also includes a proposal to apply uniform criminal sanctions against significant infringement operations, regardless of whether they operate for profit -- a provision that would have significant repercussions for many popular non-profit file-sharing services. The proposal also would increase ex officio authority of customs authorities.
Because the results of the negotiations could have serious ramifications for parties who own or deliver intellectual property on a domestic and international scale, the ongoing discussions merit serious attention and we will continue to watch developments closely.