News

ACTA Emergency Communique: Add Your Name Today

Last week, I had the honour of delivering the opening keynote address at a conference on the Anti-Counterfeiting Trade Agreement held in Washington.  The event brought together over 90 academics, practitioners and public interest organizations from five continents at American University Washington College of Law.  The resulting papers are among the most comprehensive anywhere on the implications of ACTA for countries around the world.

I plan to post my presentation shortly, but with negotiations scheduled to resume next week of greater urgency is a draft statement the reflects the conclusion of the meeting.  The statement is now open to endorsements.  Please read and consider adding your name to it by the deadline of Wednesday, June 23rd at 9:00 am by visiting the PIJIP site or emailing acta.declaration@gmail.com.  A draft is posted below:

This DRAFT statement reflects the conclusions reached at a meeting of over 90 academics, practitioners and public interest organizations from five continents gathered at American University Washington College of Law, June 16-18, 2010. In the days following the meeting, the statement received the individual and organizational endorsements listed below, and is still open for further endorsements at www.pijip.org

The meeting, convened by American University's Program on Information Justice and Intellectual Property, was called to analyze the official text of the Anti-Counterfeiting Trade Agreement (ACTA), released for the first time in April, 2010, after years of secretive negotiations. The text was released in the context of public criticism of the process and presumed substance of the negotiations (see Wellington Declaration, EU Resolution on Transparency and State of Play of the ACTA Negotiations). Negotiators claim that ACTA will not harm significant public interests.

We find that the terms of the agreement threaten numerous public interests, including nearly every concern specifically disclaimed by the negotiators in their announcement.
The proposed agreement is a deeply flawed product of a deeply flawed process.

What started as a proposal to coordinate customs enforcement offices has morphed into a massive new international intellectual property (IP) and internet regulation with grave consequences for the global economy and governments' ability to promote and protect public interests.

Any agreement of this scope and consequence must be based on a broad and consultative process and reflect a full range of public interest concerns. As detailed below, this text fails to meet these standards.

Recognizing that the terms of the agreement are under negotiation, a fair reading of the proposed text as a whole leads to our conclusions that ACTA:

THE INTERNET
-Encourages internet service providers to police users of the internet without adequate court oversight or due process;

-Globalizes 'anti-circumvention' provisions which threaten innovation, competition, open source business models, interoperability, copyright exceptions, and user choice;

FREE TRADE AND ACCESS TO MEDICINES
-Disrupts the free trade in legitimate generic medicines and other goods, and sacrifices the foundational principle that IP rights are territorial, by requiring customs authorities to seize goods in transit countries even when they do not violate any law of the producing and importing countries;

-Does little or nothing to address the problem of medicines with insufficient or wrong ingredients as the majority of these are not IP but regulatory system problems.

-Extends the powers of custom officials to search and seize a wide range of goods, including computers and other electronic devices, without adequate safeguards against unwarranted confiscations and privacy invasions;

-Extends 'ex officio' border search and seizures from willful, commercial scale trademark counterfeiting to a broad range of intellectual property infringements, including “confusingly similar” trademark violations, copyright infringement standards that require interpretation of "fair use" or similar user rights, and even to patent cases which frequently involve complex questions of law and fact that are difficult to adjudicate even by specialist courts after full adjudicative processes;
FUNDAMENTAL RIGHTS AND FREEDOMS
-Will curtail full enjoyment of fundamental rights and liberties, including rights to privacy and the protection of personal data, health, access to information, free expression, due process and presumptions of innocence, cultural participation, and other internationally protected human rights;

SCOPE AND NATURE OF IP LAW
Distorts the balance fundamental to IP law between the rights and interests of proprietors and users, including by

    * introducing very specific rights and remedies for rights holders without correlative requirements to provide exceptions, limitations, and due process safeguards for users;
    * shifting enforcement from private civil mechanisms to public authorities and third parties, including to customs officials, criminal prosecutors and internet service providers — in ways that are likely to be more sensitive to proprietary concerns and less sensitive to user concerns;
    * omitting liability and disincentives for abuses of enforcement processes by right holders; and
    * requiring the adoption of automatic damages assessments unrelated to any proven harm; 

-Alters the traditional and constitutionally mandated law making processes for IP by:

    * locking in and exporting controversial aspects of US and EU enforcement practices whcih have already proven problematic, foreclosing future legislative improvements in response to changes in technology or policy;
    * requiring substantive changes to intellectual property laws of a large number of negotiating countries.

INTERNATIONAL TRADE AND DEVELOPMENT
-Will disproportionately harm development and social welfare of the poor, particularly in developing countries, including through raising unjustifiable trade barriers to imports and exports of needed medicines and other knowledge embedded goods;

-Contains provisions inconsistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement);

-Conflicts with the World Trade Organization Doha Declaration on TRIPS and Public Health and World Health Assembly Resolution 61.21 by limiting the ability of countries to exercise to the full flexibilities in the TRIPS agreement that can promote access to needed medicines; 

-Circumvents and undermines the commitments agreed to under the World Intellectual Property Organization development agenda, particularly recommendation 45 committing to “approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns," and "in accordance with Article 7 of the TRIPS Agreement";

INSTITUTIONAL ISSUES
-Creates a new and redundant international administration for IP issues outside of WIPO or the WTO with broad powers but limited transparency, threatening multilateralism in international IP norm setting;

-Encourages technical assistance, public awareness campaigns, and partnerships with the private sector that appear designed to promote only the interests of IP owners;

CONCLUSIONS ABOUT THE DEMOCRATIC PROCESS

The current process for considering public input into ACTA is fundamentally flawed in numerous respects. In many countries, the only consultations taking place are with select members of the public, off-the-record and without benefit of sharing the latest version of the rapidly changing text. There is little possibility that a fair and balanced agreement that protects and promotes public interests can evolve from such a distorted policy making process.

Governments, right holders and civil society should have an open and evidence-based discussion on the right strategy to confront willful commercial scale trademark counterfeiting and commercial scale copyright piracy. This discussion should take place in multilateral and national open and on-the-record forums with access to current negotiating text so that all interested stakeholders can participate.

14 Comments

  1. Anarchist Philanthropist says:

    Stop the C-32 and the people pushing it
    We need to find a way to throw these people OUT of office. They have NO right to be there. Then when they’re out we make sure people leave the internet alone, let it evolve as it should. The internet can regulate itself.

  2. Unbelievable BS…. those in charge of this need to be booted quick, fast and permanently from any and all public offices!

    Everyone needs to get off their seats and harass their MPs, other MPs, MPPs etc.. anyone and everyone in government offices needs to be told NO to this farce.

  3. Come on people… get sending your signatures!!

    The link and info for signing in case you missed it:

    Please read and consider adding your name to it by the deadline of Wednesday, June 23rd at 9:00 am by visiting the PIJIP ( http://www.wcl.american.edu/pijip/go/acta-communique ) site or emailing acta.declaration@gmail.com.

  4. Added my name
    Heck, we can always hope we make a difference after all.

    Besides, doesn’t C-32 seem to be sort of suspiciously drafted in anticipation of ACTA anyway?

  5. Hindgrinder says:

    Chicks Dig It – Pirate Remix (Satire/Parody)
    http://www.youtube.com/watch?v=Aa9mNistHSs

    Daddies Net, Mamas Netscape,
    Seeding tall through our firewall,
    Looking cool on my Youtube landscape,
    I told the neighborhood girl,
    Said “Hey y’all watch this…”
    My fate was Notice and Notice,
    And my reward one big kiss.
    When daddy asked me why I did it,
    I made him LOL when I told him,
    ‘Cause the chicks dig it.

    Pirates steal, copyright fades,
    And all we’re left with are the bits they made,
    Innovation hurts, but only for a minute,
    Yeah life is short so go on and download it,
    ‘Cause the chicks dig it.

    Black hat code,
    Scripter hermit,
    Thought I was Mitnick,
    Hacking fast but I didn’t fool the switch,
    Took out a mailbox, then a wall, then a server farm,
    The police came and called my father,
    But I met the CEO’s daughter,
    And when the judge asked me why I did it,
    He threw the book at me when I told him,
    ‘Cause the chicks dig it.”

    Pirates steal, copyright fades,
    And all we’re left with are the bits they made,
    Innovation hurts, but only for a minute,
    Yeah life is short so go on and download it,
    ‘Cause the chicks dig it.

    Just throw ACTA to the wind my friend,
    Then sit back and watch a Golden Age begin’ cause’
    Repeat Chorus

    HG
    http://www.piratepary.ca

  6. Hindgrinder says:

    Chicks Dig It – Geist Tributs
    Remix/Parody/Satire

    http://smf.rantradio.com/index.php?topic=2713.0

    Daddies Net, Mamas Netscape,
    Seeding tall through our firewall,
    Looking cool on my Youtube landscape,
    I told the neighborhood girl,
    Said “Hey y’all watch this…”
    My fate was Notice and Notice,
    And my reward one big kiss.
    When daddy asked me why I did it,
    I made him LOL when I told him,
    ‘Cause the chicks dig it.

    Pirates steal, copyright fades,
    And all we’re left with are the bits they made,
    Innovation hurts, but only for a minute,
    Yeah life is short so go on and download it,
    ‘Cause the chicks dig it.

    Black hat code,
    Scripter hermit,
    Thought I was Mitnick,
    Hacking fast but I didn’t fool the switch,
    Took out a mailbox, then a wall, then a server farm,
    The police came and called my father,
    But I met the CEO’s daughter,
    And when the judge asked me why I did it,
    He threw the book at me when I told him,
    ‘Cause the chicks dig it.

    HG

  7. Minister Moore must go!
    Minister Moore must go! together with digital locks

    http://grahamwilliams.ca/2010/06/21/2-more-reasons-bill-c-32s-digital-locks-have-to-go/

    look how coward he is.

  8. Hindgrinder says:

    Sry for double post.
    Please delete first. (misspelled URL link)
    Sry mods.

    HG

  9. Medicine? What about food?
    I see references to interfering with legitimate trade of generic medicines but what about FOOD?!? Let’s not forget that most of our commodity crops and animals have been tainted with patented genes!!

  10. pat donovan says:

    anti-actra
    signed on.

    want some poly-sci on the (topic) www?
    property, justice and culture.

    http://www.youtube.com/area163 iceland.mp4

    packrat

  11. Jake Daynes says:

    Leader of the Pirate Party of Canada
    The Pirate Party of Canada has officially endorsed this draft, and we are urging all of our members to sign as individuals as well

  12. phillipsjk says:

    FSF ACTA declaration
    This ACTA declaration is fairly neutral. The FSF has an ACTA declaration that list specific things ACTA should NOT do: http://www.fsf.org/campaigns/acta/acta-declaration

  13. Andrei Mincov says:

    ACTA: The Hidden Why
    The only reason ACTA can attract radically differing opinions from indisputably educated and intelligent people, is that it is based on the philosophy of a compromise, a balance of interests between creators and the public.

    In my new article, “ACTA: The Hidden Why” at http://mincov.com/articles/index.php/fullarticle/acta_the_hidden_why/ (http://bit.ly/aoa6Do), I explain why the only way to deal with mass violation of intellectual property rights on the Internet without creating a coercive mechanism of oppression, is to state clearly at the outset that intellectual property is being protected because no one has a right to use the results of another’s creative labour, other than on terms put forward by the creator or the subsequent copyright owner who voluntarily purchases said rights from the creator. It has nothing to do with whether the society benefits from such protection. Appeasement and compromise may temporarily create a “balance”, but what this balance effectively does is that it subjects individual rights of one group of people to some undefinable “common good”. It is only a matter of time until an elected or self-proclaimed representative of the interests of the whole society will make a case that, instead of vesting in authors exclusive rights to their works, the common good will be best served by nationalizing all works of art and imprisoning those who disagree.

  14. phillipsjk says:

    @Andrei
    I disagree with premise 1.b. It is impossible to give “Intellectual Property” an equal footing with “real property” Any attempt would result in Virtual Property rights trumping physical property rights.

    “Ideas” don’t happen in isolation. As Newton said: “If I have seen a little further it is by standing on the shoulders of Giants.”

    Since the owner is not deprived of anything when an “idea” is used, IP is subservient to Physical property. Put another way, IP is a “Public Good.”