from the TRIPS-is-for-wusses dept
ACTA and TPP have much in common, but the way in which they represents two aspects of the same impulse has never been shown more clearly than here, in this proposal to re-use elements of one in the other:
In an apparent effort to break the deadlock in negotiations for an intellectual property rights (IPR) chapter in the Trans-Pacific Partnership (TPP), several countries are proposing that certain provisions in a U.S. proposal be replaced with language from the Anti-Counterfeiting Trade Agreement (ACTA), according to informed sources.
Some of the more "moderate" participating countries have realized that TPP's criminal enforcement provisions are simply disproportionate:
Sources said that other ACTA signatories involved in the TPP – New Zealand, Australia and Singapore – want to substitute language from the agreement’s criminal offenses section with the proposed U.S. language on criminal enforcement, according to sources in Dallas.
the ACTA and the U.S. proposal [for TPP] both would require countries to provide for criminal procedures and penalties at least in cases of "willful" counterfeiting of trademarks and copyright piracy on a "commercial scale."
That last comment is noteworthy, because it shows that the copyright industries want to punish general users swapping unauthorized copies with criminal sanctions even if there is no money involved. It confirms that these treaties are not really about fighting organized crime, as they are often presented, but truly a war on online sharing itself, where the aim is to put ordinary people behind bars.
However, the U.S. proposal contains a much stricter interpretation of what constitutes commercial scale because it would cover significant infringements for both the purposes of commercial advantage or private financial gain as well as acts that result in no direct or financial gain.
One source said this provision could criminally punish an individual who has committed a significant act of infringement but does not intend to gain financially from it. IPR industry sources defend this approach as capturing users of file sharing services who do not stand to gain financially by sharing a large amount of pirated content.
To break the deadlock on this issue, the moderate wing of the TPP club is apparently suggesting that the equivalent ACTA provisions should be re-used. It's interesting to see ACTA, which is still being fiercely fought in Europe because of its harsh and unbalanced nature, presented here as a milder option compared to TPP. If nothing else, that negotiating calculus emphasizes just how extreme TPP is.
However, it's also disturbing that ACTA, although not yet in force, is already being taken as the new baseline. Indeed, the article quoted above notes that ACTA's provisions "represent a much higher standard than the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)" - the previous benchmark here.
Moreover, as regards the current "compromise" idea of using ACTA's provisions instead of the US proposals for TPP, an industry source had the following to say:
the U.S. IPR text largely reflects the U.S.-Korea FTA [Free Trade Agreement] and it would be unlikely the U.S. would agree to provisions that are less strict in the area of criminal enforcement.
As far as the US is concerned, it seems, every treaty in this area, whether bilateral (as in the US-Korea FTA) or multilateral (as with ACTA and TPP), is part of a policy ratchet that allows change in only one direction: more. The unspoken assumption that more copyright and more enforcement are always better is one of the key reasons why SOPA failed, ACTA is meeting such resistance, and even TPP is stumbling.