Saturday, October 31, 2009

The Anti-Counterfeiting Trade Agreement (ACTA): Upcoming Negotiations

What is the Anti-Counterfeiting Trade Agreement, also known as ACTA? And why should you care? Counterfeiting, after all, is one of those obscure criminal enterprises, that yes, must be addressed by law enforcement, but why should lawyers, or the general public, be concerned about this one?

Well, first, because ACTA is not, in the main, about counterfeiting, despite its name. The scope is much more broad. It's about intellectual property; and the establishment of new international treaty to provide for greater and more effective global enforcement of intellectual property. Originally announced in 2007 by IP-industry rich states like United States, Japan and European Union member states, ACTA takes aim, once again, at the illegal copying, distribution, and transfer of protected intellectual property; yes, including the Internet. Also now on board? Australia, Canada, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the aforementioned U.S., Japan, and E.U.

Second, and perhaps more problematic, is how secretive the negotiations have been.

No draft has ever been released for public scrutiny, though a handful of lawyers in Washington-- many from the "content industry"-- have seen something, but were required to sign non-disclosure agreements. In April, the United States Trade Representative did release a "summary of proposals", which is short on details but at least gives a taste of the sweeping scope of the enforcement powers being considered, including "border measures" to allow the seizure of items by customs officials if piracy is suspected.

Of course, as any trade lawyer is wont of telling you, it's not unusual for participants to treaty negotiations to jealously guard early drafts of proposals so as not to derail confidential talks and horse-trading. But ACTA-- with the next round of talks scheduled for next week in Seoul-- still deserves much more public scrutiny than it has received so far.

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