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ACTA, an Example of Global Democracy Deficit -- the Secret Treaty Negotiation

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In the past several days there are some new details about about a secret treaty negotiation to create binding global norms for the enforcement of intellectual property rights.

The negotiation involves something called the Anti-Counterfeit Trade Agreement (ACTA). It has very little to do with counterfeiting -- the scope is much broader, covering the gamut of issues relating to the enforcement of intellectual property rights. The emotive term counterfeiting is in the title to make it sound as if only a member of organized crime would object to the agreement.

So far everything about the agreement has been secret. The names of the people who attend the meetings are secret. The agendas of meetings are secret. And most of all, the text of the agreement is secret. In the U.S., there is broad bipartisan support in the Congress for the secrecy. The European Union loves the secrecy. The Japanese government loves the secrecy. Well-connected corporate lobbyists for publishers and pharmaceutical companies love the secrecy (because they get everything anyway, through legal channels and informal networks). Groups like KEI, EFF, Public Knowledge, PIRG, Consumers Union, CFA, and Essential Action (to mention just a few of the U.S. groups following this), and academics like Michael Geist, etc, hate the secrecy.

This week KEI and Michael Geist have separately reported leaked details of the negotiation.

Details emerge of secret ACTA negotiation
Putting Together the ACTA Puzzle

It is now clear that ACTA is designed to be an aggressive, detailed and extensive agreement touching on many controversial aspects of the enforcement of intellectual property rights.

One area that I follow concerns injunctions. Few people understand the details of intellectual property rules or trade agreements, but they can still be important. One basic idea is that a patent or copyright is always a strict legal monopoly, and always warrants super very tough enforcement measures. Another idea is that in some cases, you give people the freedom to use a copyrighted work or patented invention in return for remuneration (sometimes referred to as a liability rule), or you allow some freedom to use works even without remuneration (another type of exception to the exclusive right), or you acknowledge that there are legitimate disputes over what actually constitutes an infringement (such as, what are the valid claims in a patent, or what uses of a copyrighted work constitute infringement?).

The first view is the one guiding the ACTA negotiators. The second is the more complex world we actually live in today, a world without ACTA.

Here are some examples of what these policies can mean. In current U.S. law (28 USC 1498), no one can get an injunction against the federal government or its contractors for using a copyrighted work or a patented invention. The possibility of injunction is eliminated for those cases. The patent or copyright owner is not without a remedy, however, They can get money - a reasonable amount for the use of the invention or work. But they can't stop the government from using the work or the invention.

Last year the U.S. Congress considered legislation to allow people the right to use "orphaned" copyrighted works --- cases where the copyright owner is impossible to find, such as for works owned by businesses that have disappeared, or by anonymous authors. One important section of the law would allow publishers who used orphaned works in larger compilations to continue to use the works, even after an author was eventually identified, in return for remuneration to the author.

In Canada, the owner of a copyrighted architectural work can't get an injunction to have a building torn down as a remedy for a infringement -- the copyright owner can only seek a monetary judgment.

These are all cases where injunctions are not possible, because the system works better, on balance, when remedies are limited to a reasonable royalty or monetary damage.

The U.S. judiciary is also changing the rules regarding injunctions, so that in some cases, particularly in cases where the patented invention is only a small part of a larger product, the injunction is not available, but a reasonable royalty payment is available.

There are proposals in the ACTA negotiations to make require the possibility of an injunction in all cases. This would eliminate the flexibility governments now have under the existing rules (Article 44.2 of the TRIPS).

At the same time, there are proposals in ACTA to change global norms for compensation for infringing uses. Rather than "reasonable" or "adequate" remuneration, governments would be required to consider various measures of "lost profits," the "market value," the "suggested retail price," or "at least the amount of royalties or fees" the owner would have requested. These are legal terms that would make it more expensive to infringe, in some cases, so much so that people will avoid doing things that are taken for granted today. The possible impact of these changes are broader than you may think. The Huffington Post, like other user generated content sites, is involved in many cases where bloggers infringe copyrighted photos or other materials. Youtube videos may or may exceed the rights under U.S. "fair use" doctrine. Some experiential uses of biomedical materials may violate patent rights. The businesses that host these actions take some risks, based upon one set of expectations regarding damages if they are found to have infringed. If you continue to racket up the damages on everything, a lot of useful activity will be deterred.

Looking to the future, there are proposals to radically change reward systems for medical R&D and other areas, using cash prizes linked to health care outcomes. The legality of these regimes under current global intellectual property norms would be undermined by some of the proposals in the ACTA.

These and a hundred other important issues are complicated, and important. New global norms on these topics should not be negotiated in secret. The reason this is happening in secret is that the U.S. Congress, the U.S. Executive Branch, the European Commission, the European Council of Ministers, and many other governments are unduly influenced by a handful of aggressive and often dim witted and ham handed corporate lobbyists who could care less about the larger impact of the changes they are proposing.

It would be nice if even one member of the U.S. Congress, from either party, would stand up and say: "the public deserves to know what is going on." This negotiation should not be held in secrecy.

Outline of the (secret) ACTA provisions
Chapter One Initial Provisions and Definitions
Section A: Initial Provisions
Section B: General Definitions

Chapter Two Legal Framework For Enforcement of Intellectual Property Rights
Section 1: Civil Enforcement
Section 2: Border Measures
Section 3: Criminal Enforcement
Section 4: Special Requirements Related to Rights Management Technology and the Internet

Chapter Three International Cooperation
Chapter Four Enforcement Practices
Chapter Five Institutional Arrangements
Chapter Six Final Provisions