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Toward an ACTA Super-Structure: How ACTA May Replace WIPO

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Friday March 26, 2010
[This post appears jointly here and at the PublicACTA site]

For the past two years, most of the ACTA discussion has centered on two issues: (1) substantive concerns such as the possibility of three strikes and a renegotiation of the WIPO Internet treaties; and (2) transparency issues.  The leak of the comprehensive ACTA text highlights the fact that a third issue should be part of the conversation.  The text reveals that ACTA is far more than a simple trade agreement.  Rather, it envisions the establishment of a super-structure that replicates many of the responsibilities currently assumed by the World Intellectual Property Organization.  Given the public acknowledgement by negotiating countries that ACTA is a direct response to perceived gridlock at WIPO, some might wonder whether ACTA is ultimately designed to replace WIPO as the primary source of international IP law and policy making.

I wrote about the ACTA threat to WIPO last year, arguing that successful completion of the ACTA negotiations would undermine the WIPO Development Agenda, since countries such as the U.S. and E.U. would have little incentive to advance the agenda.  The ACTA text suggests that it goes much deeper than just slowing progress at WIPO, it effectively replaces WIPO in many respects. Canada is the lead drafter of the institutional ACTA arrangements.

The current ACTA draft includes detailed provisions on committees, dispute resolution, and treaty formalities.  These include:

1.   The creation of an ACTA Oversight Committee

The committee would:
  • supervise ACTA implementation
  • facilitate amendments to ACTA
  • consider any other ACTA-related matter
  • establish standing committees, working groups or task forces to "undertake monitoring and the evaluation of the agreement." 
  • The EU would like the committee to "endorse best practice guidelines for implementing ACTA."
  • meet annually or bi-annually in Geneva (there is disagreement on whether every 1 or 2 years)
The committee would also serve as the source for resolving disputes.  The inclusion of a dispute resolution mechanism - again proposed by Canada - is proving controversial. New Zealand would like it excluded altogether, Australia wants the committee to merely facilitate the avoidance of disputes, and Japan wants to discuss later.  It would appear that Canada has bigger plans, proposing that the committte will "resolve disputes that may arise regarding its interpretation or application."  There are no specific details on how the dispute resolution system would function.
 
2.   The creation of an ACTA Secretariat

The country that serves as chair of the ACTA Oversight Committee would provide the secretariat.  There is currently some disagreement on this issue.  For example, Japan favours using an international organization to provide secretariat services, Korea wants to entrust the Secretariat to the WTO, and Morocco supports the creation of a permanent secretariat (ie. not rotating with the committee chair).

3.   Permit ACTA observers

The current draft provides:

"Countries candidate to become a Party to the Agreement may be invited [by the Committee] to attend sessions or parts thereof of the Oversight Committee as observers.  An invitation under the same status may be extended [by the Committee] to international organizations active in the field of intellectual property and to non-governmental groups of intellectual property stakeholders."

Australia supports adding non-Party states, noting this could help enforcement efforts with non-parties and increase global coordination.

4.   Open ACTA to other countries

There is some disagreement on who else may join ACTA.  Proposals include being an existing member of WIPO, the WTO, or the United Nations.  ACTA itself will take effect 90 days after five countries have deposited their instruments of ratification, acceptance, approval or accession.  Australia has proposed keeping ACTA open for signature for a long period of time - up to five years - to provide potential members who are not participating in the negotiations time to sign.

5.   Capacity Building and Technical Assistance

A key role for WIPO in recent years has been to provide capacity building and technical assistance to developing countries.  ACTA contains specific provisions to assume this role.  In fact, Morocco is calling for a "special allocation fund" to finance these ACTA intiatives which can include "promoting the culture of intellectual property", training, capacity building in institutions, statistical evidence gathering, joint operations, and enforcement.

While many of these issues are not slated for discussion at the next round of talks in New Zealand - some countries want the substantive issues ironed out first - Canada has proposed an ambitious ACTA infrastructure that extends beyond a typical trade agreement.  In fact, when contrasted with the current WIPO functions - regular meetings, committees, technical assistance, a secretariat - ACTA would clearly replicate WIPO in many important ways.
Comments (9)add comment

James Love said:

the ambitions of the institution, and the enforcement of ACTA
USTR does now acknowledge that they want ACTA to be a "living and breathing" initiative, and the amendment and implementation mandates are certainly consistent with this. Two points that people might also consider. First, the WTO TRIPS Agreement has language on enforcement issues, but this is also in the context of all sorts of safeguards in the TRIPS that do not exist in ACTA, such as (but not limited to) Articles 6, 7, 8, 40 and 44.2 of the TRIPS. While ACTA does not have much of a dispute resolution mechanism itself, it will likely be implemented by making the ACTA standards and best practices part of more enforceable agreements, such as by amending NAFTA, other enforceable FTA and trade agreements, including those involving the European Union.
March 26, 2010

Hindgrinder said:

"promoting the culture of intellectual property"
I don't understand how plagiarising "Maritime Law" into "Thought Ownership" will achieve worldly trade balance, control copying or eliminate counterfeiting. Youth of today are far more in tune with "Intellectual Freedom" than "Intellectual Property". The only citizens who understand the "culture" of ACTA are merchants, bankers, politicians and the legal society. Thankfully we have Angus, Geist, Lessig ect to dumb it down enough for us laymans. It would be wise to study "WWW Culture" in the age groups from 5-40 for a number of years prior to having talks on such a broadly worded treaty. In banking culture - those who have the gold make the rules. In "Internet Culture" - those who "Know How" mold the future of innovation.
March 26, 2010

StompinObasans said:

All this is pointles American foot stomping.
American media cartels are wanting to impose their will upon entire world through this, however the project is failed from the start :

1 - there is no power on the face of planet that can force china to anything. Especially not us, not with the immense amount of u.s. govt. bonds china holds. i wouldnt want to see what happens if china starts selling those bonds, or does anything else with them.
2 - russia is another block - american media companies, their subsidiaries or international organizations dont have any clout in russia. its doubtful that anything can be enforced there.

china has 1.5 billion or so of world's population. russia has a good 150 million, but holds influence over numerous post-soviet countries.

3 - india is another 1.2 billion, and very poor to enforce anyhting. also, any kind of brutal, feudal copyright enforcement like american media cartels want, would cause a lot of unrest in india, and make any administraiton lose its clout and get replaced. in any case, law enforcement officials and public would just ignore acta terms anyway.

Add india, and it makes another good ~ 3 billion of world population.

4 - Enter Europe. corporate lobbying doesnt have the anti-democratical power it has in united states, and european countries are very sensitive about their freedoms. in parallel, european parliament have practically blocked numerous important features of acta, like 3 strikes, and shot down isp liability feature by reinforcing its own previous decision in that regard. Even if it didnt, in many european countries these brainless, liberty-violating features would be individually killed, like french constitutional court killing 3 strikes in france way before eu parliament.

add europe, we are now close to $4 billion of world's population. what's left are african countries, which do not have much to do with internet, and south american countries. among these, brazil, with 191 million population, is already against what the american media cartels want, and follows a pro-liberty policy in that regard already. with this, south america is also lost to them, with only 119 million population mexico probably having to stick by whatever u.s. demands.

with over half of the world population gone out of the clout of the agreement, its basically pointless to pursue this. but, it has been prepared, and millions spent for lobbying u.s. senators to that end by american media cartels, so even if it is doomed to fail, they are going to try for it, like a beheaded chicken.

my preference would be European parliament shoot down acta for good with a resolution, and china withdrawing from table. this would practically kill acta and save all 256 countries of the world a lot of effort and time.
March 26, 2010

Anonymous Coward said:

ACTA: The Anti-Citizen Trade Agreement
A secret "treaty" that has more to do with copyright than with counterfeiting.

"Citizen? You spelled consumer wrong."
March 26, 2010

Laurel L. Russwurm said:

we don't need no stinkin' ACTA

"Canada is the lead drafter of the institutional ACTA arrangements" ... "Canada has proposed an ambitious ACTA infrastructure that extends beyond a typical trade agreement."

I wonder if it's possible that the Canadian (minority) government is working so very hard to set up this infrastructure so that there will be plumb job openings available for unseated politicians after the next election?

I haven't had time to read all the way through let alone understand the consolidated ACTA documents yet, but ...

(I've put a "vanilla" xhtml text version on my personal website here: http://russwurm.org/bulletin/shine/ + links to other versions if you want to read/post it) ...
... isn't it interesting that all along whenever anyone talks about Canadian copyright reform, there is a chorus of -- we have to follow the Berne treaty ... we can't do that because of WIPO this or WIPO that... yet A.C.T.A. sounds more and more like a case of the Copyright Lobby saying "we don't need your stinkin' WIPO, we'll make our own with our own rules. Nya nya.
March 27, 2010

pat donovan said:

grunt
and only 5 countries need to agree to this to make it (world) wide?

(some idiot patented the double-linked list last week. sheesh. anybody wanna go for 2+2=4 now? math processes are also up for grabs)

as i said LAST week, they don't need terrorists, pandemics or invasions of little green men to make a NWO. They have cd's.

The assumtion of guilt (reversal of onus), mere abilty to break law(p2p), possibility of breaking law, (actra) ,are all FAR worse than anyone thinks.

bill c-61 did away with warrents, evidence, trails, and compensation. (here in canada). They can even sell what they take.

way past time for some serious corperate mass murder here, i think.

it's common enough, right?

packrat
March 28, 2010

Anon-K said:

@Pat Dovovan
Regarding the doubly linked list...patent 7028023 (Inventor Ming-Jen Wang, assignee LSI Logic Corp) in fact appears to patent multiply linked lists, one of which would therefore be the doubly-linked list. The patent itself is worded generically enough that the lists themselves are not necessarily in forward and reverse order (although that would be one implementation). The patent claims, in essence, a number of sorting orders, with a linked list implementing each. Basic CompSci, at least for software people... Of course, LSI is a hardware company and this may have been revolutionary for them ;-) A completely bogus patent, it should be easily made invalid. In a sense, RDBMS vendors have been doing this for years, at least since the early '90s.

The difference between this patent and "remix" copyright is that the patent expires in 2022, while a copyright on the remix, issued the same day, would expire in 2081.
March 28, 2010

Daniel said:

Transparency text by Canada and Switzerland
I just got an information from our intellectual proporty institute in Switzerland on a new factsheet. How would you judge the factsheet? Especially as it claims that their are no obligatory three strikes rule and civil liberties would not be curtailed? Maybe it is about the wording, but I am more and more confused...

https://www.ige.ch/fileadmin/user_upload/Juristische_Infos/e/acta_factsheet.pdf

And btw it was done together with Canada.
March 30, 2010

Mhammad Sabir said:

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September 21, 2010

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