News and Analysis • Volume 12 • Number 21 • 11th June 2008

ACTA Negotiations Move Forward Amid Controversy

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Delegations from twelve nations and the European Union (EU) met in Geneva on 3-4 June to discuss the Anti-Counterfeiting Trade Agreement (ACTA), an agreement that proposes to strengthen the level of intellectual property enforcement standards related to goods and services.

Participants of the first official meeting comprised developed and key developing nations, including Australia, Canada, the EU Japan, Jordan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, the United Arab Emirates, and the United States.

In a statement issued after the meeting, participants indicated that border measures were the focus of the discussion, particularly the matter of how to deal with large-scale intellectual property infringements, which can frequently involve criminal elements and pose a threat to public health and safety.

Participants also discussed future engagement with domestic stakeholders and agreed to proceed on that front and to identify opportunities for further engagement in the future.

Participants described the discussions as useful and indicated that they were satisfied with the progress to date.

At their next meeting, which has been tentatively scheduled for mid-July, countries expect to continue discussions on border enforcement while also exploring other areas, such as civil enforcement.

The draft text proposals discussed at the meeting have not been made available.

Negotiations generate concerns

In October of last year, US Trade Representative Susan Schwab announced that the US would seek to negotiate the ACTA agreement, with the aim of establishing a stronger set of standards for the enforcement of intellectual property rights.

USTR has called ACTA a “new and dynamic effort to combat the challenges of counterfeiting and piracy today.” It added that “the ACTA is envisioned as a leadership effort among trading partners that will raise the international standard for IPR enforcement.”

However, the leakage last month of a USTR discussion paper on ACTA has spurred criticism of both the agreement itself and the secrecy of the discussions surrounding it. While ACTA negotiations have been ongoing, the text under discussion has not been made available to the public and civil society. Instead, the agreement is being negotiated directly mainly among the key developed countries and will bypass existing structures such as the WTO and the World Intellectual Property Organisation (WIPO).

A number of non-governmental organisations such as the Electronic Frontier Foundation (EFF) and Knowledge Ecology International (KEI) have expressed their concerns about the initiative, underlining the lack of transparency that has characterised the ACTA negotiating process to this point.

Both organisations made submissions to the USTR in February 2008 in response to a request for public comments on the proposed agreement.

EFF expressed its belief that no empirical evidence had been provided justifying the creation of a new TRIPs-plus plurilateral intellectual property enforcement treaty backed by the sanctions of international trade law.

KEI warned against a lack of clear definitions of core terms such as counterfeiting, infringement and piracy.

For their part, IP right holders and business groups, such as the International Trademark Association (INTA) and The International Chamber of Commerce’s (ICC) Business Action to Stop Counterfeiting and Piracy (BASCAP), in an April press, release welcomed the news that the EU would join in the ACTA negotiations as well.

In the statement, ICC Secretary General Guy Sebban emphasised the importance of developing a robust treaty: “In order to be relevant, ACTA must deliver significant improvements over existing multilateral guidelines by establishing stronger international standards for government performance on intellectual property enforcement.”

In the absence of a publicly available draft text, there has been active speculation about the measures envisaged by ACTA.

Michael Geist, a law professor at the University of Ottawa, has called on governments to lift the ‘veil of secrecy’ hanging over the treaty. “Trade negotiators may prefer to remain outside of the spotlight, yet greater transparency is desperately needed,” he said.

William Patry, a commentator on copyright issues underlined that “the failure to open it up now speaks loudly about its proponents’ purposes and our worst fears of its substance.”

A US trade official estimated that negotiations will wrap up within the year. “The United States will strive to complete the agreement before the end of 2008,” the official said.

ACTA comes at a time when developed countries have persistently raised the enforcement issue at the WTO and in WIPO facing reluctance from developing countries to engage in substantive discussions and in particular ones that might lead to new standards in this area. In recent years, US bilateral free trade agreements have included a set of specific enforcement obligations beyond the internationally agreed minimum standards embodied in the TRIPs Agreement. This is also the case increasingly of bilateral trade agreement negotiated by the EU, as in its Economic Partnership Agreements with a number of developing countries

ACTA negotiations are perceived by some analysts as an example of “forum shopping” in the international intellectual property system, in the sense that developed countries pursue bilateral and plurilateral agreements to advance their interests while circumventing multilateral forums.

ICTSD reporting. “Proposed multilateral agreement to combat counterfeiting moving forward,” AG IP NEWS, 16 April 2008.