[Infowarrior] - The ACTA Threat To The Future Of WIPO

[Richard Forno]

14 April 2009
The ACTA Threat To The Future Of WIPO

http://www.ip-watch.org/weblog/2009/04/14/the-acta-threat-to-the-future-of-wipo/

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By Michael Geist

Since representatives from the United States, European Union, Canada,  
and a handful of other countries simultaneously announced their  
participation in the Anti-Counterfeiting Trade Agreement negotiations  
in October 2007, the ACTA has been dogged by controversy over the near- 
total lack of transparency. Early negotiations were held in secret  
locations with each participating country offering near-identical  
cryptic press releases that did little more than fuel public concern.

The participating countries conducted four major negotiation sessions  
in 2008 and though the first session of 2009 was postponed at the  
request of the US (which was busy transitioning to a new president),  
the negotiations are set to resume in Morocco in May. In recent weeks,  
the structure and key provisions within the draft treaty have come to  
light, yet it is the candid acknowledgment that ACTA represents an  
attempt to avoid the consensus-building approach of the World  
Intellectual Property Organization that should give supporters of a  
multilateral approach to intellectual property policy making pause.

The ACTA details have come from two sources - a growing number of  
internet-based leaks and the governments themselves. The leaks began  
in early February, with blog postings and online references to  
specific draft language. With the cat seemingly out of the bag, the  
negotiating countries released a six-page summary earlier this month  
that confirmed much of the online speculation.

The proposed treaty has six main chapters: (1) Initial Provisions and  
Definitions; (2) Enforcement of Intellectual Property Rights; (3)  
International Cooperation; (4) Enforcement Practices; (5)  
Institutional Arrangements; and (6) Final Provisions.

Most of the discussion to date has centred on the Enforcement of  
Intellectual Property Rights chapter, which is divided into four  
sections - civil enforcement, border measures, criminal enforcement,  
and the Internet. The first three sections were addressed in meetings  
last year. Although there is still considerable disagreement on the  
final text, leaked documents indicate that the draft includes  
increased damage awards, mandated information disclosure that could  
conflict with national privacy laws, as well as the right to block or  
detain goods at the border for up to one year.

Moreover, the criminal provisions go well beyond clear cases of  
commercial infringement by including criminal sanctions such as  
potential imprisonment for “significant wilful copyright and trademark  
infringement even where there is no direct or indirect motivation of  
financial gain.”

Jail time for non-commercial infringement will generate considerable  
opposition, but it is the internet provisions that are likely to prove  
to be the most controversial. At the December meeting in Paris, the US  
submitted a “non-paper” that discussed internet copyright provisions,  
liability for internet service providers, and legal protection for  
digital locks.

While the substance of the treaty will remain fodder for much debate,  
Canadian officials recently hosted a public consultation during which  
they acknowledged the true motivation behind the ACTA. Senior  
officials stated that there were really two reasons for the treaty.  
The first, unsurprisingly, was concerns over counterfeiting. The  
second was the perceived stalemate at WIPO, where the growing emphasis  
on the Development Agenda and the heightened participation of  
developing countries and non-governmental organisations have stymied  
attempts by countries such as the United States to bull their way  
toward new treaties with little resistance.

Given the challenge of obtaining multilateral consensus at WIPO, the  
ACTA negotiating partners have instead opted for a plurilateral  
approach that circumvents possible opposition from developing  
countries such as Brazil, Argentina, India, Russia, or China. There  
have been hints of this in the past - an EU FAQ [frequently asked  
questions] document noted that “the membership and priorities of those  
organisations [G8, WTO, WIPO] simply are not the most conducive” to an  
ACTA-like initiative - yet the willingness to now state publicly what  
has been only speculated privately sends a shot across the bow for  
WIPO and the countries that support its commitment to multilateral  
policymaking.

Indeed, there is little reason to believe that WIPO could not serve as  
the forum to advance intellectual property enforcement. The WIPO  
General Assembly created the Advisory Committee on Enforcement (ACE)  
in 2002 with a mandate that includes “coordinating with certain  
organisations and the private sector to combat counterfeiting and  
piracy activities; public education; assistance; coordination to  
undertake national and regional training programs for all relevant  
stakeholders and exchange of information on enforcement issues through  
the establishment of an Electronic Forum.”

The decision to move outside the WIPO umbrella and effectively exclude  
the developing world from participating in the ACTA negotiations has  
significant short and long-term implications. In the short-term, WIPO  
members can expect progress on Development Agenda issues to stall as  
ACTA partners focus on completing their treaty. Given the scepticism  
surrounding the Development Agenda harboured by some ACTA countries,  
they may be less willing to promote the Agenda since their chief  
global policy priorities now occur outside of WIPO.

The longer-term implications are even more significant. While it seems  
odd to conclude an anti-counterfeiting treaty without the  
participation of the countries most often identified as the sources or  
targets of counterfeiting activities, the ACTA member countries will  
undoubtedly work quickly to establish the treaty as a “global  
standard.” Non-member countries will face great pressure to adhere to  
the treaty or to implement its provisions within their domestic laws,  
particularly as part of bilateral or multilateral trade negotiations.  
In other words, there will be a concerted effort to transform a  
plurilateral agreement into a multilateral one, though only the  
original negotiating partners will have had input into the content of  
the treaty.

With all the cards now on the table, the developing world faces a  
stark choice - remain on the ACTA sidelines and face a future filled  
with pressure to implement its provisions or demand a seat at the  
table now. Countries such as Mexico, Morocco, and the United Arab  
Emirates have all been part of current or previous ACTA negotiations,  
suggesting that there is little reason to exclude any country that  
wants in.

By bringing Brazil, Argentina, Chile, India, Egypt, South Africa,  
China, Russia, Indonesia, and a host of other countries into the mix,  
the ACTA would shift back toward a multilateral treaty and in the  
process ensure that the counterfeiting and piracy concerns of the  
global community are appropriately addressed. Moving the ACTA  
discussion into WIPO may not be happen, but it is still possible to  
imbue the negotiations with both transparency and broad participation  
from the developed and developing worlds.


Dr. Michael Geist is a law professor at the University of Ottawa where  
he holds the Canada Research Chair in Internet and E-commerce Law. Dr.  
Geist has been an active commentator on the Anti-Counterfeiting Trade  
Agreement in his weekly columns in the Toronto Star and Ottawa Citizen  
as well as on his blog at www.michaelgeist.ca. He can be reached at mgeist at uottawa.ca 
.