This document discusses the Anti-Counterfeiting Trade Agreement (ACTA) negotiations and related issues. It notes that ACTA negotiations have been held in secret with little transparency or accountability. If finalized, ACTA could significantly expand enforcement of intellectual property rights, including requiring Internet service providers to monitor communications and potentially censor the internet. There are also concerns that ACTA could be used to circumvent existing limitations on enforcement in U.S. and EU law without public scrutiny or oversight. Overall, the document calls for more transparency in the ACTA negotiations and a broader consideration of consumer interests rather than an exclusive focus on enforcement.

1. ANTI-COUNTERFEITING
TRADE AGREEMENT
Or How I Learned to Stop Worrying and Love Information Customs
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2. ACTA History
Anti-Counterfeiting Congress. Australia. 2004.
WCO SECURE
US STOP! Initiative (Strategy on Targeting Organised Piracy) (Oct. 2004)
EU-US Strategy on the Enforcement of IPR
PRO-IP Act. Moving to the Executive Office of President.
OMB, DoJ (CCIPS), USPTO, USTR, Dept. of State, USAID, DHS, Dept. of
Agriculture, Health & Human Services, & ANY AGENCY DEEMED RELEVANT.
What about FTC?
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3. Counterfeiting and Piracy
Anti-Counterfeiting Trade (and Piracy) Agreement
with a question mark at the end. STOP!
Why is this aspect being hidden? Meme-shifting. (in addition to
Forum shifting and regime shifting).
[Historical coordination between ‘IP’ industries. 70s.] repeat
since the pre-history of TRIPs. Susan Sell, Peter Drahos.
Rhetoric: “the fight against fakes”; threaten health & safety
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4. Secrecy & Accountability
Why is it so secret? This is very Bush Administration.
Moving from multi-lateral & bi-lateral to pluri-lateral
Lacking accountability. Executive Order. US. Europe. Art. 133
group.
Transparency & Openness as Concepts.
EFF & Public Knowledge. FOIA case.
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5. What’s in ACTA?
First, it was 3 main areas. Now expanded to 4. controversy over Internet issues.
International Cooperation: capacity building & technical assistance. enforcement
coordination.
Enforcement Practices: specialized IP expertise within law enforcement; public/private
advisory groups; raising consumer awareness.
Legal framework: criminal enforcement, border measures, civil enforcement, optical disc
piracy, and Internet Distribution
Internet Issues = treated separately.
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6. Information Customs
World Customs Organization (WCO) Standards Employed by Customs for Unified Rights Enforcement (SECURE).
*DISBANDED*
WCO Policy Commission meeting June 2009 (Members: France, Japan, Nigeria, Norway, Russian Federation,
Rwanda, Saudi Arabia, Slovenia, United Kingdom, United States, Canada, China, Germany, Malaysia, Mexico, Spain
and Thailand)
SG Kunio Mikuriya: New body set up under the Permanent Technical Committee or the Enforcement Committee
Training to distinguish between legal & counterfeit goods.
Ex-officio authority: privatization of enforcement. no complaint of rights-holders.
Border search exception to 4th amendment.
Routine & non-routine. neither warrant nor suspicion.
HR 6702, 6588. Electronic Device Privacy Act
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7. Criminal Provisions
Criminal sanctions for IPR infringement on commercial scale.
for purposes of commercial advantage or private financial gain.
significant willful infringements without motivation for financial gain to such an
extent as to prejudicially affect the copyright owner (e.g., Internet piracy).
Ex Officio Authority for border measures.
establishment of deterrent-level penalties and/or measures to promote deterrence (e.g.
non-binding guidelines).
footnote 14 in TRIPs: counterfeiting & piracy defined.
ACTA - all unauthorized uses, rather than permitted uses.
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8. Internet Issues
Dec. 15 negotiating meeting.
Public Comment period revelations:
require ISPs to take technical approaches to online piracy; engage in filtering
communications of copyright infringing works.
512(m) - no requirement to monitor communications.
512(g) notice, takedown, counter-notice.
DMCA 1201. Anti-circumvention. information customs officer trying to distinguish
between exception re: security, interoperability, etc.. privacy. supposedly abandoned.
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9. Changes in US & EU Law
Standard practice not to release texts during negotations
But there is a claim that this would not significantly change US
law. So why can’t they show everyone the text so we can comment
on that?
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10. EU Competence
Art. 133 Committee. basis for common commercial policy.
ECJ 1994 WTO TRIPs decision. No competence on external
policy regarding IP. (harmonization)
Amsterdam Treaty: allowed to decide on IP, but only with
unanimity of the European Council.
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11. Multi-lateralism
Coalition of the Willing: Australia, Canada, EU, Japan, Jordan, Korea, Mexico, Morocco, New Zealand, Singapore,
Switzerland, the United Arab Emirates, and the US
Leadership agreement. setting positive example for nations aspiring to IPR strength
improving America’s standing in the world
Pluri-lateral agreement.
World Customs Organization. SECURE meeting. Ecuador, Argentina, Brazil.
On the defensive at multi-lateral institutions.
Positive recommendation - should be discussed out in the open.
Coordination
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12. Industry Plans
world is a leaky place
writing letters to key negotiators. Czech EU Parliament presidency; new US administration;
Sweden.
regional ‘internet forums’
intermediaries have responsibility
DG Market Internet Stakeholder Forum
Position paper on Development Agenda
Play Western & Eastern Europe off of each other. Germany & Czech border.
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13. Multi-front attacks
OECD Recommendation on Counterfeiting & Piracy
Phase II: Piracy of Digital Content
APEC 3 Model Guidelines on Anti-Counterfeiting and Piracy
WCO Council replacement for
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14. Bush Administration
Coalition of the Willing
Shock and Awe
Surge
Transparency & Accountability
Terrorism, Politics of Fear.
Faith-based IP to evidence-based IP.
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15. Recommendations
release substantive language documents to the public.
new IP Enforcement Coordinator open to substantial inclusion
of consumer protection. include FTC. other relevant agencies.
Pass Electronic Device Privacy Act.
Innovation policy, rather than Enforcement Agenda.
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