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The European Parliament Rejects ACTA: The Impossible Becomes Possible

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 Strategy Behind the U.S. Call For a Fair Use Provision in the TPP

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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Canadian Government Announces Plans To Block Copyright Levy on MicroSD Cards

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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