As you may remember, two years ago, when news of ACTA first started getting attention, one of the key initial worries was that it would include language involving border patrol/customs agents scanning computers and other devices for "infringing content." At the time, many people pointed out that border patrol folks simply are in no position to determine what is and what is not infringing copyrights. Just as Viacom falsely thinks that YouTube somehow can make a similar legal decision on the fly, determining whether or not something infringes on copyright is not that simple. Soon after that, people were reassured that such provisions would not be a part of ACTA. However, it appears that in the latest leaked draft, some countries are supporting language
that puts that concept back into ACTA. At that link, Howard Knopf does an excellent job explaining why such determinations should not (and cannot reasonably) be made at the border:
- A judgment call about whether a particular product is "legal" or not is very often far from clear. For example, running shoes or handbags may be made "illegally" on the same assembly lines as the "real" product "after hours" and be identical in all physical respects to the "real" product. How is the border official supposed to make the determination as to whether the goods are "legal" or not?
- In the case of parallel imports (which by definition are perfectly legitimate and neither fake nor counterfeit), the factual and legal issues are extremely complex. The US Supreme Court is about to hear a case about whether perfectly legitimate Omega watches with a small copyrighted logo engraved on the back can be imported into the US by Costco. Some of the smartest lawyers and judges in the USA are bitterly divided over how this case should turn out. In Canada, we had the Kraft case involving Toblerone chocolate bars, which resulted in a victory for the parallel importer and a complex judgment from a very divided Supreme Court of Canada (I was counsel for the Retail Council of Canada, whose intervener's arguments prevailed in the result). There was, of course, immediate speculation about how to get around the judgment but the subsequent court cases of which I am aware have settled or, in the case in which I was involved, fizzled.
- If the best lawyers and judges have to struggle intellectually about whether perfectly legitimate parallel import goods can be legally imported, are we ready to allow border guards with no legal education, and with no prior judicial oversight to make this initial determination and potentially tie up millions of dollars worth of merchandise for great lengths of time, forcing the importer to go to court to get the goods released?
- Border officials will inevitably be "educated" and provided with information about suspect shipments by those who may have a vested interest in keeping out parallel imports and may even have an interest in causing serious inconvenience to a legitimate competitor.
- The recent wrongful seizure of generic aids medicine in the Netherlands was vivid proof that empowering border officials to make difficult IP decisions can lead to serious and even potentially fatal consequences.
- Somebody should pay for the economic losses resulting from wrongful seizures. Who will that be?
- What remedies will there be for abuse or misuse of the "ex officio" system by competitors?
- What if the result of a wrongful seizure of medicine results in harm to health and safety?
There are a few more that are Canada specific (since Knopf is in Canada, and Canada is supporting the provision). Somehow I doubt we'll see much of a serious discussion of these important points, should this provision actually make it into ACTA.