A new draft global trade treaty may interfere with fair use of copyrighted materials, require Internet Service Providers (ISPs) to monitor all consumers' Internet communications, and undermine access to low-cost generic medicines.
Does the proposed Anti-Counterfeiting Trade Agreement (ACTA) contain provisions that would actually do these things?
There's no way to know, because the treaty text remains secret.
More than 100 public interest organizations from around the world today called on officials from the countries negotiating ACTA -- the United States, the European Union, Japan, South Korea, Canada, Mexico, Switzerland Australia and New Zealand -- to publish immediately the draft text of the agreement.
In any case, what possible rationale is there to keep a treaty that claims to be about unauthorized copying secret? Are the negotiators worried that counterfeiters might somehow influence the negotiations?
U.S. trade negotiators have justified the cloak-and-dagger approach to ACTA on the grounds that all trade treaties are negotiated in secret. But this is not so. Negotiating texts are commonly made public in multilateral trade negotiations, including in the current Doha Round negotiations at the World Trade Organization and the now discarded talks for a Free Trade Area of the Americas, and in treaty negotiations at organizations like the World Health Organization (for example, here), and the World Intellectual Property Organization (for example, here).
No, the reason is to keep the public in the dark.
This matters, because intentionally or not, a treaty to prevent unauthorized copying may easily go too far, and undermine important consumer interests. And it matters because, not surprisingly, there's more to worry about than errors by well-meaning technocrats.
The recording industry, Hollywood, the software moguls, and Big Pharma are all aiming to use tough talk about "counterfeiters" and "piracy" to push governments to do much more than crack down on trademark and copyright infringers who aim to deceive consumers. They want government assistance in enforcement of trademarks, copyright and patents, even though these are private rights. And they want to impose liability on third parties that might possibly facilitate unauthorized uses, even if these third parties are unaware of the activities of alleged infringers. This is an agenda being pursued in multiple venues, of which ACTA is among the most important.
One reason that ACTA is so important is that it almost certainly is intended to apply to the entire world. Borrowing from the strategy of the failed Multilateral Agreement on Investment, the rich countries are working out a deal among themselves. Then the rest of the world's nations will be told that they can join the treaty on a take-it-or-leave-it basis -- with major pressure imposed to get developing countries to take it.
News reports, leaked documents and published material from various business associations (linked here) certainly give reason to fear what may be in the treaty. The public interest sign-on letter expresses concern that ACTA may:
* Require ISPs to monitor all consumers' Internet communications, terminate their customers' Internet connections based on copyright holders' repeat allegations of copyright infringement, and divulge the identity of alleged copyright infringers possibly without judicial process, threatening Internet users' due process and privacy rights; and potentially make ISPs liable for their end users' alleged infringing activity;
* Interfere with fair use of copyrighted materials;
* Criminalize peer-to-peer file sharing;
* Interfere with legitimate parallel trade in goods, including the resale of brand-name pharmaceutical products (known as drug "reimportation" in the United States);
* Impose liability on manufacturers of pharmaceutical raw materials, if those raw materials are used to make counterfeits. Such a liability system would likely make raw materials manufacturers reluctant to sell to legal generic drug makers, and thereby significantly damage the functioning of the legal generic pharmaceutical industry;
* Improperly criminalize acts not done for commercial purpose and with no public health consequences; and
* Improperly divert public resources into enforcement of private rights.
Presented with these concerns, the U.S. Trade Representative's officials say there is no reason to be worried. ACTA won't require more than existing U.S. free trade agreements, the officials say.
This assurance is, first, not exactly a comfort.
Meanwhile, business groups are explicit that believe ACTA should do far more than existing U.S. free trade agreements. Are they having their way? There's no way to know as long as the draft treaty remains a secret.
Note: I am director of Essential Action, which helped organize the ACTA sign-on letter discussed in this article.
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