CRS Report Withheld By USTR Confirms That ACTA Language Is Quite Questionable
from the revealed dept
We’re happy to announce that we’ve been able to get our hands on the — until now — secret Congressional Research Service analysis of ACTA. You can see it embedded below, and it shows that the language used by the USTR in ACTA has lots of weasel words that let them claim it doesn’t impact US law, but the interpretations of the language could very much impact US law. First some background.
A few weeks back, we mentioned that KEI was appealing the fact that the USTR was refusing to release a Congressional Research Service report on the legality of ACTA, claiming that it couldn’t release the report because it was controlled by Congress. However, there is little evidence to support that. Not surprisingly, the USTR’s response to KEI’s appeal was to again deny the FOIA request to release the report, claiming:
The [USTR FOIA Appeals] Committee undertook a comprehensive review of the circumstance of the creation of the document at issue and the conditions under which it was sent to USTR, including through statements provided by members of USTR’s Office and Congressional Affairs and Office of Intellectual Property and Innovation. The Committee concludes that Congress intended to retain control over this document and that it is not an agency record subject to FOIA.
What struck us as odd about the whole thing was why KEI was focused on the USTR, rather than Senator Wyden. So we asked Senator Wyden to release the report, and about an hour ago, his office sent us the CRS memo, in slightly redacted form. The redactions are around a specific issue relating to ongoing negotiations over the degree to which patents are covered by ACTA — the one key sticking point in the remaining negations. The US wants to include a footnote that effectively lets it ignore a key point about patent injunctions, because US law has certain prohibitions on injunctions, and the current ACTA text suggests that all signatories would have to offer up injunctions as a possibility in those cases.
As you read through the document, however, what becomes clear is that nothing is very clear in ACTA, and there are all sorts of weasel words and poorly-defined aspects to the drafting. What that means is that it all depends on the interpretation. If certain sections are interpreted one way, then ACTA clearly conflicts with US law. If they’re interpreted in a more permissive fashion, then the US can walk the tightrope and comply with ACTA without having to change US law. But the problem is that it’s not at all clear. This leads ACTA supporters to be in a position to say, “well, it doesn’t require changes to US law,” and then not have to deal with the issue that, down the road, lobbyists (and other countries) will inevitably point to language in ACTA and push the US to change its laws in order to comply. That’s the really nefarious part about all of this.
The memo also notes that while technically Congress is not supposed to be restrained by ACTA, the practical realities may be different:
Congress may not feel compelled to take into account the requirements of an agreement that it had no formal role in approving. On the other hand, it may well be that Members of Congress might be reluctant to consider legislative approaches that would alter federal law in a manner that might make the United States in default of its ACTA obligations. The seriousness of such a concern may turn on the extent to which the United States may be held accountable for ignoring its ACTA obligations, or how successful the United States is in convincing other ACTA Parties of its compliance with the ACTA commitments even with such legislation.
In other words, if the US can weasel its way around complaints from other countries and industry lobbyists, it might still be able to fix broken parts of copyright, trademark and patent law… but most folks in Congress probably don’t want to bother with that fight. More simply: technically, ACTA probably doesn’t constrain Congress, but the political reality is that it absolutely does constrain Congress. But we knew that already.
Most of the other concerns are specific to the language choices used in ACTA. For example, in this section, the CRS researchers note how the drafters try to distinguish rights from enforcement in ways that might not be reasonable or even possible:
Another initial provision in the draft tax declares: “This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party’s law.” Note that this language refers to intellectual property rights (as opposed to remedies for violation of those rights). Thus, this provision allows a Party to have domestic laws that contain exceptions, limitations, and conditions concerning the “availability, acquisition, scope, and maintenance” of IPR. It does not, however, appear to apply to a Party’s domestic laws that provide exceptions to the remedies that are available to intellectual property holders that seek to enforce their IPR. Yet it may be difficult in certain circumstances to draw a distinction between a Party’s domestic laws that establish rights and those that provide remedies for violation of those rights; if the domestic law clearly concerns the latter, then this provision does not appear to be relevant. For example, a law that specifies that “injunctive relief is not available…” for certain acts of infringement, appears more clearly to be a limitation on available remedies. However, a law that specifies that “it is not an act of infringement to” perform a specific action could be considered a limitation on remedies, or it could also be regarded as an exception, limitation, or condition regarding the availability and scope of IPR.
Really, what becomes clear in all of this is just what a dreadful document ACTA is. It’s vague in all sorts of important places, in order to give the USTR and ACTA supporters wiggle room to claim that it is in line with US law, but allow folks in other countries to claim that the US is not in line with ACTA. Agreeing to ACTA is a disaster in waiting. Even if it doesn’t technically constrain Congress, it’s going to tie us up in a series of ridiculous fights over compliance, and the pressure will clearly be on the US to interpret the provisions in ACTA in the most stringent ways (necessitating changes to US law) to avoid fights over whether or not we’ve lived up to our “international obligations.”