It has been readily apparent for a number of months now that "counterfeiting and piracy" is the new focal point for intellectual property policy reform. With global conferences, legislative hearings in national capitals, and new anti-counterfeiting coalitions, copyright lobby groups have jumped on the anti-counterfeiting bandwagon. While the claims regularly focus on health and safety risks or suggestions that organized crime or terrorist groups benefit from counterfeiting, the reality is that the policy prescription typically includes a range of issues that have little to do with those issues. These include anti-circumvention legislation, higher damages, and an increased use of public tax dollars to provide protection for private commercial interests.
The strategy has proven remarkably effective. Despite the absence of any independent data (indeed, there is evidence that some numbers have been fabricated), politicians are easily convinced that action is needed since the lobbyists often come armed with compelling props (exploded batteries, unsafe toys) and no one actually supports counterfeiting. Of course, the issue is not whether you are for or against counterfeiting, but rather whether the proposed reforms have anything to do with health and safety or significant economic concerns.
Having placed counterfeiting on both domestic (see the recent government response and attempts to create an IP caucus) and bi-lateral agendas (including the SPP and the G8), yesterday the U.S. unveiled an even more ambitious goal – a new international Anti-Counterfeiting Trade Agreement.
Given the recent backlash at WIPO, the U.S. is avoiding the U.N. system. Instead, it has created a new counterfeiting coalition of the willing that includes the European Union, Japan, South Korea, Mexico, New Zealand, and Canada. Those countries yesterday simultaneously announced enthusiastic support for a new trade agreement with negotiations to begin next year. Indeed, International Trade Minister David Emerson's announcement to the House of Commons brought the MPs to their feet.
This treaty could ultimately prove bigger than WIPO – without the constraints of consensus building, developing countries, and civil society groups, the ACTA could further reshape the IP landscape with tougher enforcement, stronger penalties, and a gradual eradication of the copyright and trademark balance.