Experts Draft Document Critical Of ACTA: Signatures Wanted

from the reviewing-acta dept

With ACTA finally being officially "released" back in April, the Program on Information Justice and Intellectual Property, at American University's Washington College of Law, brought together a ton of actual stakeholders and experts last week to discuss what the draft actually said -- and found severe problems with it. Together, they put together a draft letter for signatures, which they plan on releasing on Wednesday of this week. The current draft reads as follows:

This DRAFT statement reflects the conclusions reached at a meeting of over 90 academics, practitioners and public interest organizations from five continents gathered at American University Washington College of Law, June 16-18, 2010. In the days following the meeting, the statement received the individual and organizational endorsements listed below, and is still open for further endorsements at www.pijip.org

The meeting, convened by American University's Program on Information Justice and Intellectual Property, was called to analyze the official text of the Anti-Counterfeiting Trade Agreement (ACTA), released for the first time in April, 2010, after years of secretive negotiations. The text was released in the context of public criticism of the process and presumed substance of the negotiations (see Wellington Declaration, EU Resolution on Transparency and State of Play of the ACTA Negotiations). Negotiators claim that ACTA will not harm significant public interests.

We find that the terms of the agreement threaten numerous public interests, including nearly every concern specifically disclaimed by the negotiators in their announcement.

The proposed agreement is a deeply flawed product of a deeply flawed process.

What started as a proposal to coordinate customs enforcement offices has morphed into a massive new international intellectual property (IP) and internet regulation with grave consequences for the global economy and governments' ability to promote and protect public interests.

Any agreement of this scope and consequence must be based on a broad and consultative process and reflect a full range of public interest concerns. As detailed below, this text fails to meet these standards.

Recognizing that the terms of the agreement are under negotiation, a fair reading of the proposed text as a whole leads to our conclusions that ACTA:

THE INTERNET
-Encourages internet service providers to police users of the internet without adequate court oversight or due process;

-Globalizes 'anti-circumvention' provisions which threaten innovation, competition, open source business models, interoperability, copyright exceptions, and user choice;

FREE TRADE AND ACCESS TO MEDICINES
-Disrupts the free trade in legitimate generic medicines and other goods, and sacrifices the foundational principle that IP rights are territorial, by requiring customs authorities to seize goods in transit countries even when they do not violate any law of the producing and importing countries;

-Does little or nothing to address the problem of medicines with insufficient or wrong ingredients as the majority of these are not IP but regulatory system problems.

-Extends the powers of custom officials to search and seize a wide range of goods, including computers and other electronic devices, without adequate safeguards against unwarranted confiscations and privacy invasions;

-Extends 'ex officio' border search and seizures from willful, commercial scale trademark counterfeiting to a broad range of intellectual property infringements, including "confusingly similar" trademark violations, copyright infringement standards that require interpretation of "fair use" or similar user rights, and even to patent cases which frequently involve complex questions of law and fact that are difficult to adjudicate even by specialist courts after full adjudicative processes;

FUNDAMENTAL RIGHTS AND FREEDOMS
-Will curtail full enjoyment of fundamental rights and liberties, including rights to privacy and the protection of personal data, health, access to information, free expression, due process and presumptions of innocence, cultural participation, and other internationally protected human rights;

SCOPE AND NATURE OF IP LAW
-Distorts the balance fundamental to IP law between the rights and interests of proprietors and users, including by
  • introducing very specific rights and remedies for rights holders without correlative requirements to provide exceptions, limitations, and due process safeguards for users;
  • shifting enforcement from private civil mechanisms to public authorities and third parties, including to customs officials, criminal prosecutors and internet service providers -- in ways that are likely to be more sensitive to proprietary concerns and less sensitive to user concerns;
  • omitting liability and disincentives for abuses of enforcement processes by right holders; and
  • requiring the adoption of automatic damages assessments unrelated to any proven harm; 
-Alters the traditional and constitutionally mandated law making processes for IP by:
  • locking in and exporting controversial aspects of US and EU enforcement practices which have already proven problematic, foreclosing future legislative improvements in response to changes in technology or policy;
  • requiring substantive changes to intellectual property laws of a large number of negotiating countries.
INTERNATIONAL TRADE AND DEVELOPMENT
-Will disproportionately harm development and social welfare of the poor, particularly in developing countries, including through raising unjustifiable trade barriers to imports and exports of needed medicines and other knowledge embedded goods;

-Contains provisions inconsistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement);

-Conflicts with the World Trade Organization Doha Declaration on TRIPS and Public Health and World Health Assembly Resolution 61.21 by limiting the ability of countries to exercise to the full flexibilities in the TRIPS agreement that can promote access to needed medicines;  

-Circumvents and undermines the commitments agreed to under the World Intellectual Property Organization development agenda, particularly recommendation 45 committing to "approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns," and "in accordance with Article 7 of the TRIPS Agreement";

INSTITUTIONAL ISSUES
-Creates a new and redundant international administration for IP issues outside of WIPO or the WTO with broad powers but limited transparency, threatening multilateralism in international IP norm setting;

-Encourages technical assistance, public awareness campaigns, and partnerships with the private sector that appear designed to promote only the interests of IP owners;

CONCLUSIONS ABOUT THE DEMOCRATIC PROCESS

The current process for considering public input into ACTA is fundamentally flawed in numerous respects. In many countries, the only consultations taking place are with select members of the public, off-the-record and without benefit of sharing the latest version of the rapidly changing text. There is little possibility that a fair and balanced agreement that protects and promotes public interests can evolve from such a distorted policy making process.

Governments, right holders and civil society should have an open and evidence-based discussion on the right strategy to confront willful commercial scale trademark counterfeiting and commercial scale copyright piracy. This discussion should take place in multilateral and national open and on-the-record forums with access to current negotiating text so that all interested stakeholders can participate.

They are looking for signatures to include on the document before it is released on Wednesday. If you agree with what the document says, feel free to follow the instructions on the site to add your name to the list. Will it actually have any impact? Who knows, but it's about time that those who have been blindly supporting ACTA realize that the concerns here are legit, and weren't all wiped away just because the government released the document.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Quick Brown Fox, Jun 21st, 2010 @ 3:44pm

    Constitution

    ACTA is a massive violation of Constitutional rights.

     

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

  2.  
    identicon
    Anonymous Coward, Jun 21st, 2010 @ 4:35pm

    Re: Constitution

    ACTA is a massive violation of common sense.

     

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

  3.  
    icon
    interval (profile), Jun 21st, 2010 @ 4:43pm

    Re: Re: Constitution

    ACTA ia a... well, something bad. I didn't want to be left out.

     

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

  4.  
    identicon
    Anonymous Coward, Jun 21st, 2010 @ 5:08pm

    Re: Re: Re: Constitution

    Like how Brazil, Russia, India and China were left out?

     

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

  5.  
    icon
    kyle clements (profile), Jun 21st, 2010 @ 5:53pm

    let's see...

    Let's see how many voices our democratically elected leaders can ignore.

    The truly sad part is, even if we 'win' this round, and manage to miraculously stop ACTA from being passed, they will just try to pass the same thing a few years later.
    It can be shot down a hundred times, while it only has to pass once to count. (See the Canadian DMCA-now in round 3- for a real life example of this.)

     

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

  6. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Jun 21st, 2010 @ 6:58pm

    which stakeholders did they bring in, file sharing sites, torrent operators, and search engines? sheesh.

     

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  7.  
    icon
    Hephaestus (profile), Jun 21st, 2010 @ 7:35pm

    Re: let's see...

    "The truly sad part is, even if we 'win' this round, and manage to miraculously stop ACTA from being passed, they will just try to pass the same thing a few years later.
    It can be shot down a hundred times, while it only has to pass once to count."

    If this international agreement isnt signed now it wont be. The big media companies will all be under accelerating competition and pressure over the next 5 years reducing their profits and making an attempt in the future less likely. Spain and south korea come to mind. If north america goes the way of spain they loose this with zero chance of recovery.

    If this agreement is signed it wont do any good. How do you fine or jail 40%-50% of a countries population? How do you cut off 10% of a population as an example to the rest? You cant. Several years back the IRS got slapped down for being overly agressive. This is the same thing in a different form. It will back fire badly on the IP and media distribution companies. The companies in for a rude awakening are Pharma, content distribution (record labels, TV studios, Movie Studios, and the US's ISP's). The trends and charts for these industries show that Creative Destruction is going to kick in very soon.

    Also if this agreement is signed there are ways around it. The rules, uncertainty, and conflicting laws it puts in place make entry into the industries meant to be protected impossible without influence. All rules can be circumvented. In this case its simple, create open standards and simple licensing agreements for copyright and IP along side the system they implement. This allow for people to contractually use IP and content with the rules being set in stone with no negotiation or fees needed.

    Free or knowing what its going to cost for use of IP and content, and convenience will win out over a closed and protected system. In the end simplicity and convenience always wins.

     

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

  8.  
    icon
    Hephaestus (profile), Jun 21st, 2010 @ 7:40pm

    Re: Re: let's see...

    "with no negotiation or fees needed."

    should read

    "with no negotiation of fees needed."

     

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  9.  
    icon
    jjmsan (profile), Jun 21st, 2010 @ 8:13pm

    Re:

    You need a question mark after "in" the word change "file sharing sites, torrent operators and search engines" to file sharing and torrent site operators and search engine owners". See a coherent post and not much more effort.

     

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

  10.  
    identicon
    Bzzzzzzzzzzzzzzz, Jun 21st, 2010 @ 8:33pm

    Re:

    "which stakeholders did they bring in"

    butchers ?

     

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

  11.  
    identicon
    Anonymous Coward, Jun 21st, 2010 @ 9:07pm

    Re: Re:

    People discussing things on a blog may be easy to discard as nonsense or even make it appear it is a "minority", but when a hundred experts go on record saying the same thing the blogs are saying one has to wonder who is the minority really.

     

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

  12.  
    identicon
    Anonymous Coward, Jun 21st, 2010 @ 9:07pm

    From the law school website, its meeting was attended by:

    ..."90 academics, practitioners and public interest organizations from six continents..."

    From the article here:

    "...brought together a ton of actual stakeholders and experts last week..."

    Not at all clear how these two statements of the attendees merry up. Having attended many meetings such as this (albeit on different subjects), my initial reaction is a breakdown roughly equal to 80 academics and 10 from the other two listed groups (and I sure as heck do not classify academics as stakeholders).

     

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  13.  
    identicon
    Anonymous Coward, Jun 21st, 2010 @ 9:38pm

    Re:

    "(and I sure as heck do not classify academics as stakeholders)."

    I think copyright laws were originally made exclusivily for them(academics), sound and video were not even copyrightable if a remember correctly until laws changed so I think they are the ones that most qualify as stake holders.

     

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  14.  
    identicon
    Anonymous Coward, Jun 21st, 2010 @ 11:08pm

    Re:

    it is the magic of being misleading. it could be 2 actual professors, 86 teaching assistants, and 2 local musicians. without full discloure, it could be anything. the lack of information makes this entire thing very, very suspect. of course, because mike isnt a journalist, it isnt like he is going to check into it. rather, he will happily pass it off as some huge wave of outrage, when it may be nothing more than a couple of pissed of tenured professors and their paid staff.

    the lack of details allows you to form your own opinions, and mike counts on you making assumptions that are not supported by the facts as presented.

     

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

  15.  
    icon
    Jay (profile), Jun 21st, 2010 @ 11:59pm

    Ok but...

    How will we get around medicines and patent?

    Currently, with Canada being locked up with their own version of DMCA, it's harder to get medicines at a cheaper price here in the US. Even Walmart can't do miracles on that!

     

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

  16.  
    identicon
    Anonymous Coward, Jun 22nd, 2010 @ 12:41am

    Re: Re:

    "the lack of details allows you to form your own opinions, and mike counts on you making assumptions that are not supported by the facts as presented."

    Funny that you didn't read the thing because at the end of it they list all organizations and individuals responsible for it.

    List of institutions listed:

    ORGANIZATIONS:

    Alternatives Action and Communication Network for International Development

    Association for Progressive Communications

    Asociación Civil Nodo Tau
    Berne Declaration

    Brazilian Institute for Consumer Defense

    Center for Technology and Society (FGV Direito Rio)

    Consumers International

    Co-Reach IPR in New Media, International Association of IT Laywers

    Corporate Europe Observatory

    Electronic Frontier Foundation

    Esfera Hacks Políticos

    EXGAE

    FFII e.V.

    Foundation for Media Alternatives (FMA)

    Free Knowledge Institute

    Freedom Against Censorship Thailand*

    Freedom for IP

    Health Action International (Europe, Africa, and Global)

    Health Global Access Project (NYC, Phila., DC)

    House of Digital Culture

    Instituto Overmundo

    IT for Change

    Knowledge Ecology International

    La Quadrature du Net

    LOKOJ Institute

    New America Foundation

    Open Culture Foundation

    Open Rights Group

    Open Technology Initiative

    Oxfam America

    Panoptykon Foundation

    Pirate Party Australia

    Pirate Party

    Proyecto BiblioFyL, Capital Federal

    School of Communication of the UFRJ

    South African Municipal Workers' Union

    Strawberrynet Foundation

    Students for Free Culture

    Tech Liberty NZ

    Transparência Hacker Community

    Young Pirates Party

    ZaMirNET

    There is one even longer list for individuals.

     

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  17.  
    identicon
    Bzzzzzzzzz, Jun 22nd, 2010 @ 4:53am

    Re: Re: Re:

    Why not just come out and say it, rather than beat around the bush.

     

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  18.  
    identicon
    abc gum, Jun 22nd, 2010 @ 4:55am

    Re: Re: Re:

    We can't have facts interfere with a good rant now can we?

     

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

  19.  
    identicon
    Anonymous Coward, Jun 22nd, 2010 @ 6:48am

    quit whining online and do something about it or go be a communist elsewhere.

     

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

  20.  
    identicon
    Anonymous Coward, Jun 22nd, 2010 @ 6:51am

    Re: Re: Re:

    based on that list, i would say that no stakeholders were invited, only a collection of wingnuts and young leninists looking to stroke their scrubby beards and declare things better when everything is shared by the people.

    seems like your typical very liberal to socialist / communist collection that has all the business sense of a turnip.

    the list seals the deal, this is worldwide the same people who stand on street corners with pickets signs trying alternately to save the whales and legalize pot. woo hoo, lets take advice from that group of 'stakeholders'. holy crap.

     

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  21.  
    identicon
    Anonymous Coward, Jun 22nd, 2010 @ 8:35am

    Re: Re: Re: Re:

    I noted, with a wry smile, the attendance of three of the most important stakeholders, i.e., three "Pirate" organizations.

     

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

  22.  
    icon
    ChurchHatesTucker (profile), Jun 22nd, 2010 @ 11:02am

    Re: Re: Re: Re:

    "seems like your typical very liberal to socialist / communist collection that has all the business sense of a turnip."

    Listen, child. When you advocate a free market and open competition, you're a conservative.

    When you advocate just doing what big business and the government says, you're a fascist.

    Time for some contemplation, youngling.

    Also, brush up on your grammar. It'd help your rants seem less crazy.

     

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

  23.  
    identicon
    Anonymous Coward, Jun 22nd, 2010 @ 1:20pm

    Re:

    Agreed the RIAA should go whine somewhere else and stop trying to transform the U.S. into Russia with all this state interference.

     

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

  24.  
    icon
    Alex (profile), Jun 23rd, 2010 @ 1:17am

    Actually conservatives don't really advocate free markets and open competition, they advocate whatever is in the interests of business and the wealthy. Often, but not always, that happens to be free markets.

     

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

  25.  
    identicon
    Anonymous Coward, Jun 23rd, 2010 @ 5:28am

    Re: Re: Re: Re: Re:

    "Listen, child. When you advocate a free market and open competition, you're a conservative." - they arent advocating a free market, just look at the list of groups to see the reality. "Students for Free Culture", "South African Municipal Workers' Union",and of course, the "pirate party" people. not a very conservative bunch. socialist unions, student "culture" groups, and pirate parties are not leading supporters of the republican party in the us, are they?

    it isnt about free market, it is about equal access for all, no matter if they can afford things or not. it is about tearing down all of the restrictions and rewards that come with a patent system, and replacing it with a socialist state of everyone being equal.

    i cannot think of a single conservative that would mistake that for anything but a pinko commie manifesto.

     

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


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