Le Monde diplomatique has just obtained a copy of section 2 of the ACTA treaty project, titled “Border Measures” and consisting of a dozen pages outlining, in very detailed practical terms, the future of customs practices with respect to “goods suspected of infringing intellectual property rights”.
After three years of negotiations so secret that even the names of the negotiators were unknown, the contents of the Anti-counterfeiting Trade Agreement (ACTA) have begun to be leaked.
Over some 50 pages, this agreement — discussed between Australia, Canada, the US, the EU and its 27 member states, Japan, Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland — establishes a list of legal arrangements that future signatories will pledge to adopt in their national legislations (and, for the EU, in community law).
Exclusive 22 March, by Philippe Rivière
Here is the gist of “Border Measures” with our comments. (Due to the text’s technical nature, some legal details may need further clarification.)
Section 2 of the ACTA starts by an examination of the “scope of the Border Measures”. All negotiators agree that a country will not be compelled to prosecute a simple tourist carrying a few counterfeited goods (Compact Disks bought on a market, “Noke” or “Adidos” pairs of shoes) in his personal luggage.
The EU negotiators have inserted language in this article to the effect that this section covers “any of the intellectual property rights covered by TRIPS (1)” (article 2.2 as proposed by the EU), on goods that are “imported, exported, or in-transit” (article 2.1 EU). It is to be noted that several other countries (Singapore, Canada and New Zealand) seem to think that only copyrights and trademarks — not patents — should be considered in section 2 (2).
Should this section of the ACTA include patents, though, one must fear a scenario witnessed on several occasions, in which generic medicines legally produced in India, and en route to poor countries where they are legal, are seized by customs during their transit in the EU; this might become the norm.
Section 2 then proceeds to indicate how customs services (“competent authorities”) will be put at the service of Intellectual Property rights (IPR) holders (including “associated rights”).
Article 2.6 (“Application by right holder”) states that each signatory country shall provide procedures by which IPR holders “may request the competent authorities to suspend release” of suspected counterfeited goods “into free circulation”. The examples given include “counterfeit trademark goods”, “confusingly similar trademark goods (...) and suspected pirated copyright goods”. A footnote mentions that “for purposes of this Section, pirated goods means any goods that are copies made without the consent of the right holder (...)”. Morocco, the US and New Zealand insist that these procedures should also apply to goods “in-transit”.
The workings of these procedures are very detailed. The “applicant” (the IPR holder wishing to have certain products controlled at the borders) will “provide adequate evidence to satisfy themselves that, under [its] laws, there is prima facie an infringement” and “to supply sufficient information (...) to make the suspected infringing goods reasonably recognizable by” customs agents. It is explained that this requirement shall not “unreasonably deter recourse” to the procedures.
False or misleading information
In obvious cases (e.g., a Windows DVD without its holographic seal), this might be a no-brainer. However in more subtle or complex cases, abuses will abound. An article proposed by Canada and New Zealand acknowledges this and states that “an application may be administratively suspended or voided for cause, particularly where it is established that an applicant has accumulated substantial unpaid storage or destruction costs” (...) [or] “has abused the process by, for example, knowingly provided false or misleading information”.
Some transparency will have to be included, but negotiators seem to differ on the subject. The applicant will be informed that his application has been accepted; the application shall be made “public, while protecting any information in the application that is confidential”. The exact list of elements that customs officers will use to decide whether a goods is or is not infringing, in particular, will remain secret.
Article 2.7 “Ex-Officio Action” indicates that the competent authorities will be allowed to “act upon their own initiative” when an IPR holder hasn’t applied.
Article 2.8 outlines the “provision of information from right holder”.
Article 2.9 — “Security or equivalent assurance” — aims to prevent abuse by asking the applicant to provide “reasonable security or equivalent assurance” so as “to protect the defendant” whose legitimate goods are blocked in customs “from any loss or damage resulting from any suspension of the release of the goods in the event the competent authorities determine that the good is not” counterfeit or pirated. Again, though, this should not “unreasonably deter recourse to these procedures”.
The US, Canada and New Zealand then propose that, for each intercepted cargo, information shall be given to the IPR holder stating the “names and addresses of the consignor, importer, exporter, or consignee, and (...) a description of the goods, the quantity of the goods, and, if known, the country of origin and name and addresses of producers of the goods”.
Article 2.10 asks each country to set up procedures by which customs agents will “determine (...) within a reasonable period of time (...) whether the suspected infringing goods infringe an intellectual property right”. This might happen through the standard judicial system.
But — in the event, for example, that drugs are concerned — can we imagine that a customs officer will be have the ability to determine the status of a patent, its validity, the possible existence of a compulsory licence, and to establish that a certain patent does indeed apply to a certain drug? These are elements that even a tribunal, in a contradictory procedure, has difficulty in assessing.
Destroy all t-shirts
The section then goes on to “remedies”. Article 2.11 states that each country needs to ensure that counterfeited products are “destroyed, except in exceptional circumstances” (sic). No signatory of the ACTA will allow intercepted goods to be released “into the channels of commerce”. In the case of counterfeit trademark goods, “the simple removal of the trademark unlawfully affixed shall not be sufficient”.
Article 2.12 states that, in cases where IPR holders are charged for destruction costs, those costs recovery measures should be minimal. No costs should be incurred by holders when the destruction is made upon the customs initiative.
The leaked pages from this international treaty do nothing to mitigate the impression made by the lack of transparency of its elaboration.
Negotiated by an ad hoc coalition of the richest countries in the world, the text is a sort of coup d’etat against the World Intellectual Property Organization (WIPO), suspected of not being “tough” enough anymore (read Florent Latrive’s article in our [French] March issue). With its “Institutional Arrangements”, ACTA seeks to establish a parallel international anti-piracy organization, made at the hand of its promoters (3).
ACTA adopts a maximalist position on “protection” of IPR, without a mention of the arbitrages which all laws on the matter are founded on, and which traditionally have to balance the rights of creators with the rights of the public. The text will cancel a series of legal dispositions that the large players in the so-called “immaterial” economy (music, movies, software, pharma, luxury...) consider as obstacles to their power.
When it comes to the Internet, analysis based on early leaks indicated that the ACTA would ask all signatory countries to adopt a “graduated response” to the file sharing users downloading copyrighted movies and music files. However, Luc Devigne, EU negotiator, strongly affirmed during the first stakeholders’ meeting in Brussels, on the morning of 22nd March, that this idea had not been considered at any time by any participant, and would be rejected outright. In any case, the text says that signatories should “require criminal sanctions for inciting, aiding and abetting infringements (...) at least in cases of wilful trademark counterfeiting and copyright or related rights piracy on a commercial scale”. Such language could be used to criminalize any system or platform allowing electronic copying. A bit like, in the 1980s, the Hollywood lobbies had tried to outlaw... videotape recorders. With the expansion of the digital environment, all of home computing could become a target, especially free software, which by definition is uncontrollable. As James Love writes on the Knowledge Ecology International blog, “Wilful copyright or related rights piracy on a commercial scale is defined in the ACTA text to include: ‘significant wilful copyright or related rights infringements that have no direct or indirect motivation of financial gain’” (4). A search engine that would enable its users to locate unlawful files could then be directly targeted. Nothing short of the Chinese model for the Internet (5).
As the text of Section 2 shows, ACTA does not limit itself to digital freedoms. To understand it, one should read the interview given by the European MEP Sandrine Bélier on March 18, to ReadWriteWeb France (6): “The ACTA treaty raises questions about access to knowledge, generic medicines, patents, patenting of seeds. The contents of treaty will determine the future hierarchy of international relations. ACTA contains in itself, pardon my image, the issues of a little Yalta (...) in the sense that a state that needs to protect its citizens’ health, to offer them environmental and food safety, that wants to innovate ‘eco-technologically’, and works to free and guarantee the access to information (...) will gain in economic, social and geopolitical stability. Conversely, States that will, in the coming years, fail to offer this to their populations will without doubt become fragilized.”
The issue is a bone of contention between the European Commission and the Parliament. The former has initiated these secret negotiations of a commercial treaty that includes new rules in criminality (which in itself could be an abuse of power). The latter voted quasi-unanimously in Strasbourg (633 votes for, 13 against, and 16 abstentions) a resolution to make ACTA public, and more sensitive to civil liberties and consumer protection.
On March 10th, James Murdoch, heir of the News Corp media giant, declared online piracy no different from “stealing a handbag”, and asked to stop being “customer-friendly” and “punish” the pirates (7). Sharing the floor with him was Ari Emanuel — brother of Rahm Emanuel, White House Chief of Staff to Barack Obama — who announced he was launching a lobbying effort in the US to introduce a “three strikes and you’re out” law — identical to the Hadopi in France — to fight illegal downloading.
On the next day, in Washington, President Obama sided boldly with the copyright interests and — for the first time — publicly defended the ACTA project, in his remarks at the Export-Import Bank’s Annual Conference: “We’re going to aggressively protect our intellectual property. Our single greatest asset is the innovation and the ingenuity and creativity of the American people. It is essential to our prosperity and it will only become more so in this century. But it’s only a competitive advantage if our companies know that someone else can’t just steal that idea and duplicate it with cheaper inputs and labor. There’s nothing wrong with other people using our technologies, we welcome it –- we just want to make sure that it’s licensed, and that American businesses are getting paid appropriately. That’s why USTR [The US Trade Representative] is using the full arsenal of tools available to crack down on practices that blatantly harm our businesses, and that includes negotiating proper protections and enforcing our existing agreements, and moving forward on new agreements, including the proposed Anti-Counterfeiting Trade Agreement (8).”
French groups such as ActUp-Paris, Oxfam-France, APRIL or La Quadrature du Net met with a French government official on March 18, but felt disappointed by his “refusal to release any information”. Several governments, including the European commission, have declared that they want the text to be released publicly after the coming ACTA meeting in Wellington (New Zealand) in April. By then, negotiators might have found an agreement on the last bracketed expressions which are still being discussed. But will they manage to sell this new global copyright enforcement institution to the Internet users? Will citizens, and their representatives, accept this turnkey legal package, and the supranational powers of a specialized office that puts the customs in the hands of rights holders? This will certainly need lots of persuasion, and many a singer will have to go and cry on television about the unfortunate loss of sales of music records. The debate is only beginning.
(1) About TRIPS, read James Love, “Prescription for pain”, Le Monde diplomatique, March 2003.
(2) See “KEI notes on the EU leak of the ACTA text”, March 1st, http://www.keionline.org/node/788.
(3) James Love, “ACTA : the new institution”, 18 March.
(4) See http://keionline.org/node/806.
(5) On this issue, read, for example, http://techdirt.com/articles/20100315/0229228556.shtml
(6) “Sandrine Belier (Eurodéputée Europe Ecologie) : ‘ACTA est un petit Yalta en puissance’”, ReadWriteWeb France, 18 March.
(7) Jane Martinson, “James Murdoch: illegal downloading no different from stealing a handbag”, The Guardian, 10 March.
Original source: ACTA : chapitre deux
Original article published on March 20, 2010
Source of this translation: http://mondediplo.com/blogs/acta-an-unseen-treaty-in-the-making
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