On October 23, 2007, the U.S., E.U., Canada, and a handful of other
countries announced
plans to the negotiate the Anti-Counterfeiting Trade
Agreement. The behind-the-scenes discussions had apparently been
ongoing for several years, leading some countries to believe that a
full agreement could be concluded within a year to coincide with the
end of the Bush administration. Few paid much attention as the
agreement itself was shrouded in secrecy. ACTA details slowly began
to emerge, however, including revelations that lobby groups had been
granted preferential access, the location of various meetings, and
troubling details about the agreement itself.
As the public pressure mounted, the talks dragged along with
participating countries increasingly defensive about the secrecy and
the substance. ACTA was ultimately concluded in 2010 - years after
the initial target - and some of the most troubling provisions were
abandoned. Yet the final agreement still raised serious
concerns, both for the way the agreement was concluded as well
as for the substance.
When ACTA was formally signed by most participants in October 2011
in Tokyo, few would have anticipated that less than a year later,
the treaty would face massive public protests and abandonment by
leading countries. But with tens of thousands taking to
the streets in Europe earlier this year, ACTA became the
poster child for secretive, one-sided IP agreements that do not
reflect the views and hopes of the broader public. This morning, the
European Parliament voted overwhelmingly against the agreement,
effectively killing ACTA within the EU. The vote was 478 against, 39
in favour, with 165 abstentions This is a remarkable
development that was virtually unthinkable even a year ago. Much
credit goes to the thousands of Europeans who spoke out against ACTA
and to the Members of the European Parliament who withstood enormous
political pressure to vote against the deal.
The European developments have had a ripple effect, with the recent
Australian parliamentary committee recommendation
to delay ACTA ratification and the mounting opposition
around the world. ACTA is not yet dead - it may still eke out the
necessary six ratifications in a year or two for it to take effect -
but it is badly damaged and will seemingly never achieve the goals
of its supporters as a model for other countries to adopt and to
emerge as a new global standard for IP enforcement. That said, ACTA
supporters will not take today's decision as the final verdict. In
the coming weeks and months, we can expect new efforts to revive the
agreement within Europe and to find alternative means to implement
its provisions. That suggests the fight will continue, but for
today, it is worth celebrating how the seemingly impossible -
stopping a one-sided, secretly negotiated global IP agreement -
became possible.
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The USTR took many by surprise yesterday by announcing
that it will seek the inclusion of a fair use provision within the
Trans Pacific Partnership agreement. It specifically stated:
For the first time in any U.S.
trade agreement, the United States is proposing a new provision,
consistent with the internationally-recognized "3-step test," that
will obligate Parties to seek to achieve an appropriate balance in
their copyright systems in providing copyright exceptions and
limitations for purposes such as criticism, comment, news
reporting, teaching, scholarship, and research. These principles
are critical aspects of the U.S. copyright system, and appear in
both our law and jurisprudence. The balance sought by the U.S. TPP
proposal recognizes and promotes respect for the important
interests of individuals, businesses, and institutions who rely on
appropriate exceptions and limitations in the TPP region.
The USTR announcement was welcomed
by civil society groups, though most noted that the specific
text was not released and that it could actually create new limits
on fair use. That is certainly a concern - release of the text is
essential - but the attempt to export a U.S.-style fair use
provision makes sense for several reasons.
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The Canadian government announced
yesterday that it will use its regulation-making power to block the
attempt to apply the private copying levy to MicroSD cards. I noted
last November that it had this power to stop a Copyright Board
hearing into the matter and that the Canadian Private Copying
Collective (the group that manages the private copying levy) had
explicitly argued that it could use it to stop the imposition of the
levy on media deemed "inappropriate."
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