The ACTA Hearing: USTR Claims There's Nothing To See Here… Move Along

from the laws-are-like-sausages dept

Earlier this week, the US Trade Representative held an open hearing on the international intellectual property agreement currently being negotiated in secret, ACTA. The modicum of openness was assuredly a welcome change (even if USTRs insist that they aren’t being as secretive as claimed by many), but having attended the public meeting, I can report that the treaty is, at best, a mixed bag (though, if the MPAA and RIAA praise is any indicator, the reality is likely to be much worse).

At the meeting, Assistant US Trade Representative Stan McCoy went to great lengths to assure attendees, which included representatives of industry groups, corporations and public interest groups, that the ACTA is not being overly opaque by choice, but instead because he is bound by confidentiality and a lack of a firm draft text. Even given this lack of progress, the countries currently involved hope to finish the treaty by the end of the year – a deadline which one cannot help but think may have to do something with a certain upcoming election.

As for the content of the treaty, McCoy foresees no substantive changes to American law. ACTA, in his view, is necessary to “bridge the gap between laws on the book and strong enforcement on the ground” by developing enforcement practices, international cooperation and a legal framework which would include “criminal enforcement, border measures, civil enforcement, optical disc piracy and IPR enforcement issues relating to Internet distribution.” Of the many possible controversies which have been raised, McCoy went to great lengths to dismiss concerns that individuals’ iPods or laptops would be searched at the border, even though existing bilateral trade agreements allow for this ex officio search. McCoy says the aims are to stop large-scale piracy, but given the ever increasing storage capabilities of personal electronics, it won’t be long before the RIAA and MPAA are advocating for the search of travelers’ personal devices.

Among other concerns raised and not fully addressed are the various misconceptions that Mike has gone to length to debunk. Not once was the supposed causation between stronger IP and innovation questioned. Little attention was paid to the interests of developing countries who are woefully underrepresented in the discussions. And important concepts like fair use were after-thoughts or, in the case of training border control officials to understand IP enforcement, had not even been approached.

Overall, the USTR and Department of Commerce representatives seemed to truly want a good piece of international law, but the manner in which the treaty has been designed has a number of flaws. An executive treaty is, by nature, less responsive to the concerns of citizens. This has manifest as a lack of serious conversation with consumer advocacy groups. Further, by confounding two separate issues – counterfeiting and copyright infringement – ACTA casts to wide a net to fully respond to the dynamic, evolving nature of IP law. And by starting with flawed premises, ACTA fights an uphill battle to acceptability.

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