I posted yesterday on the updated Internet chapter in the latest version of ACTA, which features a major change on secondary liability and the U.S. attempt to clawback on recent domestic DMCA changes by arguing against linking circumvention and copyright infringement. While there remains a number of issues to be determined in that chapter (and a great deal to be addressed in the other IP enforcement chapters on criminal provisions, civil enforcement, and border measures), the rest of ACTA has largely been decided. As in the Internet chapter, where compromise was needed it was the U.S. that did most of it, as it becomes increasingly apparent that the USTR is willing to agree to almost anything in order to bring home an agreement before the next round of elections in November.
The remaining chapters are Enforcement Practices (previously chapter four, but now chapter three), International Co-operation, Institutional Arrangements, and Final Provisions. A closer look at each chapter and the most notable changes:
Chapter Three – Enforcement Practices
This chapter is nearly finalized with only one article on environmental matters still the source of some disagreement. The finalized articles focus on enforcement expertise and domestic coordination, management of risk at the border, and transparency/publication of enforcement procedures and practices. The enforcement expertise article involves a commitment to promote enforcement expertise with loose references to “endeavour to promote, where appropriate, the establishment of formal or informal mechanisms, such as advisory groups, whereby its competent authorities may hear the views of right holders and other relevant stakeholders.” Not exactly an iron-clad obligation.
More interesting is the U.S. decision to cave on border issues. The U.S. had sought a provision requiring that each party shall adopt and maintain appropriate measures that facilitate activities of custom authorities for better identifying and targeting for inspection at its border shipments that could contain pirated goods. The article then specified a range of activities including consultation, information exchange, and a mandatory audit power. Moreover, there was an additional article on information exchange between customs authorities. All of that has been dropped, leaving only a provision where a party may consult with stakeholders or share information.
The transparency/publication of enforcement procedures and practices also included more detailed requirements, including a U.S. request to require publication of “applications for the suspension by the competent authorities of the release of goods suspected counterfeit and pirated goods as a border measure.” That has also been dropped in favour of a streamlined provision on publication of procedures, laws, rulings, and efforts to ensure effective enforcement.
Finally, there is a streamlined provision on public awareness that calls on parties to promote, as appropriate, measures to enhance public awareness.
Chapter Four – International Cooperation
The International Cooperation chapter was nearly finished after the Lucerne round in July so required only minor tinkering in Washington. The chapter is nearly finished after the removal of one contentious information sharing requirement requested by the U.S. The following paragraph has been dropped:
“Each party [shall ensure], as appropriate and mutually agreed, that its competent authorites have the authority to provide the competent authorities of any other Party, either on request or on their own initiative, with information on the enforcement of intellectual property rights.”
With this requirement now removed, the information sharing requirements now require each Party to “endeavour to exchange” information on best practices and legislative initiatives. Parties will also endeavour to provide capacity building and technical assistance.
Chapter Five – Institutional Arrangements
The Institutional Arrangements chapter was also nearly complete after the Lucerne round in July. The chapter describes the establishment of the ACTA Committee, which will meet at least once per year to review the implementation and operation of the agreement, proposed amendments, and new members. The earlier references to dispute resolution mechanisms are gone, replaced by a non-binding consultation system which may arise where one Party believes another is not in compliance with ACTA. Moreover, there are provisions stipulating that the Committee shall not oversee domestic or international enforcement of specific cases and shall strive to avoid unnecessary duplication of other international efforts.
Chapter Six – Final Provisions
The final provisions, which set the conditions for the agreement to take effect, is now nearly final as well. The agreement will be open for signature for two years from when it is finalized. It will take effect 30 days after the sixth country has ratified it (earlier drafts called for five countries). Countries can withdraw with 180 days notice. The agreement can be amended if all agree. New countries can become parties to the agreement on terms set by the ACTA Committee. There is some disagreement on language – most countries want English, Canada wants French and English, Mexico wants Spanish if Canada gets French.
I’ll follow soon with a final post on the rest of ACTA – the new preamble (which includes questionable claims about counterfeiting) and the enforcement provisions that are still the subject of considerable disagreement on scope.