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Assessing ACTA: My Appearance Before the European Parliament INTA Workshop on ACTA

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Thursday March 01, 2012
The Anti-Counterfeiting Trade Agreement has mushroomed into a massive political issue in Europe in recent weeks with protests in hundreds of cities across the continent. Much of the focus has been on whether the European Parliament will give its approval to the agreement. The focal point of attention within the EP has been on the INTA committee, which holds a public workshop on the issue today. Interest in the workshop has been incredible - there are apparently 800 registrants with thousands more expected to watch the live stream.

Several months ago, I was approached to write one of several reports for the ACTA workshop. The report will be made public in the next couple of weeks, but I'll be on the workshop's first panel (along with Trade Commissioner Karel De Gucht and Professor Christophe Geiger) to discuss my report and the agreement. The panel starts at 9:15 ET. I only have ten minutes for opening remarks, so the comments target a few of the findings from the report. A transcript of my planned remarks is posted with EP permission below:

Appearance before European Parliament INTA Workshop on ACTA
March 1, 2012

Good afternoon. My name is Michael Geist. I am a law professor at the University of Ottawa, Faculty of Law, where I hold the Canada Research Chair in Internet and E-commerce Law.

I’m grateful for the opportunity to submit a report assessing ACTA to you and for the chance to comment at today’s workshop. My comments have been posted at michaelgeist.ca and I understand the report will be published shortly.

Let me start with the conclusion and then take you through my analysis. My conclusion:

“This report concludes that ACTA’s harm greatly exceeds its potential benefits. Given ACTA’s corrosive effect on transparency in international negotiations, the damage to international intellectual property institutions, the exclusion of the majority of the developing world from the ambit of the agreement, the potentially dangerous substantive provisions, and the uncertain benefits in countering counterfeiting, there are ample reasons for the public and politicians to reject the agreement in its current form.  In doing so, governments would help restore confidence in the global intellectual property system and open the door to a new round of negotiations premised on transparency, inclusion, and evidence-based policy-making.”

Allow me to explain. The report is divided into three parts.

Part one analyzes the process-related problems including the lack of transparency, the exclusion of many developing countries from the negotiation process, and the harm caused by ACTA to the effectiveness of multilateral organizations such as the WTO and WIPO. 

Part two highlights some of the major substantive concerns with ACTA. I identify four broad areas of concern: the expansion of intellectual property law, the likelihood that permissive provisions will gradually be interpreted as mandatory, the renegotiation of international intellectual property rights agreements, and the absence of balancing provisions and procedural safeguards.

Part three examines the likely effectiveness of ACTA in its current form.

I should note that while compatibility with fundamental rights and freedoms is obviously a pre-requisite for any agreement, it is not a sufficient criteria for approval. There is a need to examine process, substance, and effectiveness.

I would like to quickly expand on each issue.

1.    Process

Transparency

As you will be well aware, ACTA’s lack of transparency was a consistent source of concern throughout the negotiation process. It is important to emphasize that ACTA’s opaque approach was not “an accepted practice”, but was rather out-of-step with many other global norm-setting exercises. The WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law, and an assortment of other conventions were all far more open than ACTA.

The damage created by the lack of transparency extends beyond public distrust of ACTA. The failure to include experts throughout the negotiation process has caused significant damage to the substance of the agreement with numerous legal concerns as a result. For example, in May 2008, media around the world reported that the agreement – which was at the very early stages of negotiation – could lead to border guard searches of the contents of iPods and other personal devices. As the furor grew, ACTA participants countered the criticism by including a de minimis provision (now Article 14) to exempt small consignments and personal luggage. A similar situation arose in the context of three strikes rules.

While the public concern over these provisions appears to have resulted in changes to the ACTA text, the lack of transparency associated the negotiations meant that these cases constituted the rare instance of public feedback having an impact on the final text. Had the negotiations followed more conventional global norms, it is much more likely that the final text would better account for the remaining substantive concerns.

Harm to International Organizations

All countries and stakeholders benefit from a well-functioning international intellectual property governance model led by WIPO and the WTO. Ratification of ACTA will undermine the authority of those institutions, causing immeasurable harm to the development of global IP norms. ACTA countries avoided WIPO due to gridlock concerns, but ratifying ACTA would perversely increase the likelihood of gridlock. For those countries participating in ACTA, the successful completion of the plurilateral model will only increase the incentives to by-pass WIPO as a forum for challenging, global issues. For those countries outside of ACTA, the relevance of WIPO will gradually diminish, as achieving consensus on their concerns may prove increasingly difficult.

Harm to the Developing World

The decision to exclude the developing world will cause enormous harm. In the short term, developing countries may find that progress on WIPO Development Agenda issues stall as ACTA partners focus on ratifying their treaty and currying support for additional signatories. In the longer term, developing countries will face increasing pressure to implement an agreement on which they had no input.

Substance

The Expansion of Intellectual Property Law

ACTA raises several concerns with respect to the expansion of international intellectual property laws. The emphasis on secondary liability, which potentially holds third parties liable for the infringing actions of others, represents a significant shift in international intellectual property law. While many countries have codified secondary liability principles within their domestic laws, there are relatively few provisions aimed at secondary liability at international law. Within ACTA, Articles 8 and 12 apply in the civil enforcement context, Articles 23 and 24 add “aiding and abetting” to criminal offences, and Article 27 targets third parties in the online environment.

There is also expansion of criminal provisions and border measures.

Mandatory vs. Permissive Provisions

In an attempt to resolve ongoing conflicts over several substantive areas, the ACTA negotiators agreed to make many provisions permissive rather than mandatory. Supporters frequently point to the non-mandatory nature of several contentious provisions as evidence that there is little reason for concern with the substantive elements of ACTA. The experience with other treaties indicates that flexible, permissive language is gradually transformed into mandatory, best-practice language.

ACTA has permissive language – often as “may” in provisions – at Article 9 on Damages, Article 10 on Other Remedies, Article 14 on Small Consignments, Article 16 on Border Measures, Article 22 on Disclosure of Information, Article 23 on Criminal Offences, and Article 27 on Internet enforcement.

The net effect of these provisions is to open the door to statutory damages, detain in-transit goods, disclose information to rights holders, create criminal provisions for unauthorized camcording, and require Internet providers to disclose information about their subscribers.

While it is true that ACTA parties will not be required to implement these provisions in order to be compliant with the agreement, there will be considerable pressure to reinterpret these provisions as mandatory rather than permissive. Indeed, it is already happening as the IIPA, a rights holder lobby group, has recommended placing ACTA countries such as Greece, Spain, Romania, Latvia, Switzerland, Canada, and Mexico on the USTR piracy watch list for failing to include optional ACTA provisions in their domestic laws.

Re-negotiating International Intellectual Property Agreements

The exclusion of WIPO, the WTO and developing countries is particularly problematic given that ACTA features many provisions that alter international agreements developed at those organizations. This includes changes to TRIPS on in-transit goods, damages, and right to information. For the WIPO Internet treaties, it includes changes to the anti-circumvention rules.

Absence of Balancing Provisions and Procedural Safeguards

Unlike comparable international intellectual property agreements that have identified the need for balance and proportionality, ACTA is almost single-minded in its focus on increasing enforcement powers. ACTA Article 9 removes safeguards ACTA Article 11 removes the proportionality provision found in the TRIPS equivalent, and ACTA Article 18 does not include rules for compensation in cases of wrongful detentions.

Likely Effectiveness of ACTA

A Counterfeiting Agreement Without the Counterfeiters

ACTA supporters may have believed that an agreement could best be achieved by bringing together a “coalition of the willing”, but by limiting ACTA to predominantly developed world countries that are not typically associated with being major sources of counterfeit product, the agreement is seemingly designed to fail. Addressing ongoing global counterfeiting concerns necessitates an inclusive dialogue that brings together developed and developing world countries.

An Agreement Without Change?

There is ongoing disagreement over ACTA’s impact on domestic law – some argue that it will not change existing rules, while others believe that ACTA could require domestic changes – but both interpretations hurt the case for ratification.  If ACTA does not change domestic rules, it is far less likely to contribute positively to the battle against counterfeiting.  If it does require domestic change, ratification of the agreement raises constitutional and procedural questions as well as substantive concerns about the likely changes.

Thank you for your attention. I would be pleased to answer your questions.
Comments (9)add comment

A. Rebentisch said:

Impressive analysis
Great analysis.

However, the overall idea behind ACTA was good, namely to defend IPR assets abroad, before they enter the customs authorities. What completely puzzled me is that ACTA does not include any measures against industrial & business espionage. It appears to be the greatest threat to European innovative enterprises, from Asian nations but also in transatlantic relations, just think of financial transaction data theft. Here we have to consider that the EU level hasn't even harmonised such counter-espionage measures yet. You don't even find a solidarity clause among EU members for the field of commercial espionage. Or safeguards against the unfair use of patent enforcement by non-practising entities. Same for the criminal measures, it is not harmonised within the EU framework, but yet again, member states include it in an external agreement. In any case, an interesting debate...

Let me challenge one issue: "For example, in May 2008, media around the world reported that the agreement – which was at the very early stages of negotiation – could lead to border guard searches of the contents of iPods and other personal devices. As the furor grew, ACTA participants countered the criticism by including a de minimis provision (now Article 14) to exempt small consignments and personal luggage." -

I am not aware of scare-mongering focussing on border searches, only of the "straw man" argument that there would be so much misinformation spread by critics. Yes, I know there were some early concerns raised by Canadian media.

Formally there wasn't even a text existing in May 2008. Early on ipod searches were a straw man by ACTA proponents even then, an example of the "misinformation". The very first statement you got from the Commission was, no Ipod searches.

But the provision which later became known show that it was indeed discussed, so the articles in early 2008 were even fact-based. This morning MEP David Martin repeated the old "Ipod searches excluded, so much misinformation" straw man, and I don't blame it on him. When politicians are unable to draw a line between "may exclude" and "the agreement does not specify/contain" we still find the intention of the ACTA partners reflected in the text to get a maximalist agreement.
March 01, 2012

Andy Turfer said:

Why will ACTA not be legally binding in the US?
Great analysis - really enjoyed reading it, thanks.

I'm not a lawyer. I'm an IT professional who has been following ACTA. My main concern is what impact ACTA will have on the British (and EU) economies.

Correct me if I'm wrong, but as I understand it, ACTA will not be legally binding in the US (http://www.auilr.org/pdf/26/26.3.10.pdf).

If this is the case, does it mean that ACTA favours US corporations and interests?

If ACTA is not legally binding in the US but is legally binding in the UK, will it mean that a US rights holder will be able to promptly obtain the personal details of a British citizen (or EU citizen) on request based on little more than an alleged IPR infringement so they can sue him/her? Does it also mean that this will not be reciprocal (i.e. a UK/EU rights holder will not be able to obtain the personal details of a US citizen for an alleged IPR infringement for litigious purposes)?

I'd like to know why more focus isn't placed on the issue of ACTA being (or not being) legally binding in the US when it's obviously a US promoted 'agreement'. If the US don't make it legally binding, then why the hell should the rest of the world?

March 01, 2012

Precious Ndour said:

...
With reference to the transparency issue, the very same people that negotiated ACTA are the very same IP Reps. that frequent WIPO and WTO. Why do you think negotiating such issues in a multilateral fora would change things? Developing countries -as much as they would like to stand up for themselves- are still marginalized, and ACTA-like agreements could still have easily been discussed in those fora. Just look at TRIPS, and other such agreements. The only reason why they were done behind closed doors was because at the initial stages of discussion, developing countries had a stronger presence and power in the multilateral system. That presence is now gone, sadly. One can just look at the dire and sad state of such IGOs as WIPO. ACTA can now easily be discussed there and there would be hardly be objection. I have read the wikileaks on WIPO and one can see the back-room wheeling and dealing that continues at there. The Diplomatic Conference on Audiovisual Performances is such an example. Will there even be a VIP Treaty? Indigenous peoples had the courage to walk out on the IGC: but did it make a difference? The only reason ACTA is dying a slow death is because the ordinary citizen is speaking out. With the help of NGOs that have the interests of the citizen at heart, and stand up for civil liberties, freedom of speech, etc. will such dent in the IP system be made. What is perhaps astonishing is that the Canadians are not speaking out more on their copyright digital lock bill! ....
March 01, 2012

Byte said:

@Precious Ndour
Oh, we're speaking out against the C11 digital lock provisions alright. It amounts to effectively 'eternal copyright'. The problem is that Canada isn't democratic in the way continental Europeans interpret the term. That is why a party with less than 40% of the popular vote can rule with absolute majority. If this would happen in Africa, one would speak of a dictatorship. It's being waived away as bla-di-bla "our electoral system" bla-di-bla.

What is strange is that there isn't more public dissent within the Ruling Party. This points to a tightly-controlled shop.

On ACTA; it would have been passed without much hassle if they had left the Internet and casual copyright infringement out of it. Just stick to the fake Vuittons and Rolexes, and everything would have been honkey-dorey. But no. Certain vested business interests always seem to be able to get their "in" and try to include their own agenda.

See here: http://www.huffingtonpost.ca/2...ref=canada

Canadians spend more and more time on-line. They are going to care about 'their' Internet. Through it, they will be exposed to everything the mainstream media try to conveniently ignore. Some if it will be misinformation/exaggerated, but some of it will be true and authoritative like the postings ( comments) on this blog.

ACTA. TPP. IPRED. TCIP. C11. PCIPA (C30). PrECISE. INDECT. What do they have in common? On-line ENFORCEMENT of rules that by greater and greater numbers are not considered 'fair and just' and TOTAL On-line SURVEILLANCE as a means to aid said enforcement. People don't like this.
March 02, 2012

Roland said:

...
A good review of the problems of the ACTA issues. At a higher level, IPP and Capitalism (Market) are two opposite forces. Where the market will take care of the lowest price and hence distribution of wealth, IPP destroys markets and keeps people poor.
March 02, 2012

embil30 said:

deff
I do not look for a superman I only want to have an ordinary happy family I am looking for a man, who will love me, will be honest with me, will respect me, support and share with me all moments of our future life together! I want to wake up every morning knowing that there is MY man, someone I am completed with, someone who I could give all of me to. I want to be the one for him, I want to cherish every single moment with the man of my dream!
March 02, 2012

Paul Marangoni said:

Death
Just jail anyone caught with illegally obtained digital goods, or anyone illegally distributing digital goods. And anyone stealing or selling music can have their ear drums punctured with a rusty nail.

Problem solved.
March 03, 2012

Christian Engström said:

MEP
Thank you for the excellent and clear presentation.

The speech is now available at Youtube: http://www.youtube.com/watch?f...zieTzart5s
March 04, 2012

VonFernSeher said:

Question section
Were there any questions asked by the authorities or other experts?
March 05, 2012

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