Good News, Bad News: ACTA, TPP And Lessons Not Learned

from the enough-is-never-enough dept

As attention gradually shifts from the Anti-Counterfeiting Trade Agreement (ACTA) to the Trans Pacific Partnership (TPP) agreement, Kimberlee Weatherall at the University of Queensland, Australia, has had the excellent idea of looking at them as part of a larger trend in a study entitled "Intellectual Property in ACTA and the TPP: Lessons Not Learned":
In this paper I am interested in what ACTA as it emerged from the negotiating process has to teach us about the negotiation of international agreements in IP, and in whether we can see any evidence that those lessons have been learned or are being applied to the TPP negotiations.
What emerges is a fascinating picture of good news and bad news. For example, the bad news is that ACTA goes well beyond the enforcement provisions of the previous benchmark trade agreement TRIPS:
The provisions of ACTA are far more elaborated than any other existing multilateral agreement. The obligations included in ACTA extend considerably beyond TRIPS as the latter relates to enforcement. Examples of TRIPS-plus provisions include the obligations to provide for an account of profits as a remedy for IP infringement, to provide statutory or at least additional damages and legal costs, obligations on an infringer or alleged infringer to provide information about the origin and distribution network of the infringing goods, powers for customs authorities to provide right holders with information where goods have been seized at the border, broader criminal provisions including secondary criminal liability for aiding and abetting activities and liability of corporate persons, an optional camcording offence, and provisions on enforcement in the digital environment that have no equivalent in TRIPS and include detail not found in the relevant WIPO Treaties.
But the good news is that ACTA was originally much worse, and lacked many crucial safeguards:
However, the final text of ACTA concluded in December 2010 is very different from the early leaked texts that started to emerge in January 2010. The Final Text retreats from some of earlier proposals for even stronger and less qualified IP enforcement measures.

Overall, the finalised version of the ACTA introduced a series of safeguards, exceptions and protections for users and parties to litigation, backed away from significant strengthening of the enforcement apparatus in relation to patents and geographical indications; left the scope of border measures in the hands of individual countries, almost completely abandoned any attempt to dictate the way that enforcement will occur in the digital environment or the ways that intermediaries in that environment will be regulated, and significantly watered down the provisions on criminal enforcement. In all these areas, the countries who have, historically, been the most enthusiastic proponents of strong IP law and strong IP enforcement, could not reach agreement.
Weatherall draws an important conclusion from this retreat:
One way to see ACTA, then, is as an exemplar of the maximum level of enforcement that will draw support from these important countries, and, hence, as a maximum set of provisions that could conceivably be multilateralised in some future global negotiations, even before the interests of large developing countries and the BRIC countries are taken into account.
In a sense, bad as ACTA is, it represents the worst that might receive support from other nations around the world, particularly the key ones who were not involved in ACTA Brazil, Russia, India and China.

And yet despite this failure to get its more extreme proposals accepted by the other participants during the ACTA negotiations, the US does not seem to have drawn the same conclusion. Based on the few leaked documents we have from the secretive TPP talks, Weatherall notes:
Assuming these leaked documents are genuine, they demonstrate a divide between the largely TRIPS-consistent, broad and general suggestions of New Zealand and Chile on the one hand, and very detailed US proposals which are not only TRIPS-plus, but go further than the chapters included in previous US trade agreements and further, notably, than ACTA.

Further, the TPP draft produced by the US includes none of the safeguards for users and parties to litigation which were negotiated into the ACTA, such as the inclusion of a reference to TRIPS Articles 7 and 8, allowance for the protection of privacy, a requirement that procedures be fair, equitable, and proportionate, and that measures not create barriers to legitimate trade.
For TPP, then, the US is trying to rewind the clock on the ACTA negotiations, and start once more from a negotiating position that even fellow ACTA participants thought went too far.
In sum, the US is treating neither its existing FTAs which the US has agreed with parties involved in the TPP negotiations, nor its past negotiations with Congress in the form of the May 10, 2007 Agreement, nor ACTA, as a ceiling for the IP provisions it will seek to include in the TPP. Rather, the US appears to be treating past FTAs and ACTA as a starting point on which to build further and stronger IP-related obligations. The wisdom of this approach is questionable, to say the least.
Once again, that's both good news and bad news. It's good news that the US may be setting itself up for yet another climbdown in this area, as happened with ACTA, if the other nations simply refuse to accept those positions. That would mean that the TPP agreement won't be as bad as it looks in the leaks.

The bad news is that the US clearly does not currently accept that there will ever be a "ceiling" or "maximum level of enforcement" as Weatherall puts it. Put another way, however few counterbalancing rights the public has now in the realm of intellectual monopolies, the US aims to reduce them further.

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Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Rekrul, Oct 31st, 2011 @ 11:25pm

    What emerges is a fascinating picture of good news and bad news. For example, the bad news is that ACTA goes well beyond the enforcement provisions of the previous benchmark trade agreement TRIPS:

    /\/\/\/\/\/\/\/\/\/\/\/\

    But the good news is that ACTA was originally much worse, and lacked many crucial safeguards:


    That's sort of like the "good" news that the loan shark you borrowed money from, is only going to break one of your legs instead of both.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    anonymous, Nov 1st, 2011 @ 12:58am

    there wont be any let-up until the general public are, basically, not allowed to use the internet unless it is for opening e-mail (after being scrutinized, scanned and ok'd by various US security agencies, just like mail is for prisoners), checking bank accounts (after being watched by various US security agencies to ensure you have stated the correct amount on tax forms), booking a holiday (after being checked by various US security agencies to ensure you're not trying to go to a country that is not on the list of recommended countries released by those various US security agencies) and buying goods (that are priced at least as high as in the shops, + shipping, after being checked by various US security agencies to ensure your not going to make a nuclear bomb)!

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Stephen Pate, Nov 1st, 2011 @ 4:13am

    IP

    In the post industrial, post IT economy, intellectual property is the major asset of the US. Of course, it wants more protection not less.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Nov 1st, 2011 @ 4:23am

    What is funny is to see someone studying something BEFORE it is put in place, and before it actually has any effect.

    It would appear to be mostly scare mongering.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    jupiterkansas (profile), Nov 1st, 2011 @ 7:36am

    Re:

    I have noticed since I first got online in 1997 that companies seem to think the only reason people use the internet is to buy stuff.

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    Atkray (profile), Nov 1st, 2011 @ 7:38am

    Re:

    You might find it amusing to be experimented on, but many of us do not.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Nov 1st, 2011 @ 9:16am

    Re:

    Truly the only way to evaluate a law or trade agreement is to put it into place and see what happens. Reading the actual text is for suckers!

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    John Fenderson (profile), Nov 1st, 2011 @ 12:23pm

    Re: Re:

    Or that it should be. I cringe every time I hear (and I hear it often) that the most important thing is that the internet be a commerce platform. I want to scream "bullshit" every time. The most important thing is that the internet be a platform to enable free exchange of bits between networks. If that can be used for commerce too, and it can, that's fine. But commerce isn't its reason for being. The moment that it is, then it's no better than cable. And cable sucks.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Loki, Nov 2nd, 2011 @ 6:43am

    "In a sense, bad as ACTA is, it represents the worst that might receive support from other nations around the world,"

    Not really, if you think of it in football terms they faked a hail mary, and popped a short ten yard pass for a first down. They still control the ball and are already setting up the next play.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Nov 2nd, 2011 @ 10:14am

    Re: Re:

    Nope, didn't say that. Rather, after much discussion back and forth between the countries involved, they have come up with a proposal, and they are going to give it a try. It isn't like someone dreamed this up over dinner and just stuck in place without discussion.

    Endless discussion is the method used most often by people trying to block something from happening. "We need more consultation" is a delay tactic that doesn't add anything to the situation, it just pushed the inevitable off further.

    Sometimes it is just better to, after the details are working out, to put something into place and see how it works, and correct any problems as you go along. Real world experience tends to beat the crap out of a bunch of bloggers talking to themselves.

     

    reply to this | link to this | view in thread ]

  11.  
    icon
    lightweight (profile), Nov 6th, 2011 @ 6:53pm

    Re:

    Heh - a US gridiron (American Football) analogy probably isn't going to resonate with many of this site's non-American users. The number of people outside the US and Canada who play American football (and would have any chance of knowing what a "Hail Mary" is, or even a "yard" for that matter) is vanishingly small.

     

    reply to this | link to this | view in thread ]


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