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Freedom and internet

The Wellington Declaration on ACTA: Sign Today

This weekend I had the opportunity to deliver a keynote address at PublicACTA, a full-day event on the Anti-Counterfeiting Trade Agreement held in Wellington, New Zealand just in advance of the next round of ACTA talks that run all this week in the city.  The event was a model to be emulated in other communities – over 100 people from the community spent an entire sunny Saturday examining the implications of the draft treaty and discussing what should be done about it. 

I will post a video of my talk shortly, but the more immediate action point is the outcome of PublicACTA – the Wellington Declaration. The Wellington Declaration was fashioned as a true grassroots effort to give voice to public concern about ACTA.  The participants spent hours discussing their concerns and then gradually drafting a declaration consistent with those views.  Event organizers plan to submit the Declaration with supporting signatures on Tuesday, so add your name to the list today.  The Wellington Declaration begins:

The participants at the PublicACTA Conference of 10 April 2010 respectfully submit this, the Wellington Declaration, to the parties negotiating the Anti-Counterfeiting Trade Agreement (ACTA), for their consideration during the Wellington round of negotiations.

Consistent with the European Parliament’s Resolution of 10 March 2010 on the Transparency and State of Play of the ACTA Negotiations (P7_TA(2010)0058), ACTA should be limited to an Agreement regarding enforcement against counterfeiting (the large scale commercial production of illicit physical goods).

The first part of the Declaration deals with general matters and principles.

The second part of the Declaration deals with some of the specific points under discussion in Wellington.

Read the whole thing and sign today (German and Spanish versions also available).

Analysis of ACTA Under Australian Law

Kimberlee Weatherall has posted an exceptional detailed analysis of the proposed ACTA provisions on Australian law.

The Truth About ACTA

Earlier this week, I spoke at a hearing on ACTA at the European Parliament.  Media coverage of the talk is available here.  The slides are posted below with full audio and video to come shortly.

ACTA’s Injunction and Damages Provisions

KEI has published an exhaustive analysis of ACTA's current injunction and damages provisions, noting that ACTA's injunction provisions are significantly more restrictive than the provisions found in TRIPs.

The Trouble With ACTA

Public Knowledge's Sherwin Siy with a good piece on some of the problems with ACTA.  As Sherwin rightly notes, "ACTA's status as a trade negotiation seems less based in the nature of its substance than in the convenience that this designation provides."

ACTA Podcast Explores Transparency and Substantive Concerns

Surprisingly Free has released a lengthy podcast in which I was interviewed about ACTA.  The 40 minute podcast touches on a wide range of issues including transparency and substance of the agreement.

EU Demands Canada Completely Overhaul Its Intellectual Property Laws

Late last year, a draft of the European Union proposal for the intellectual property chapter of the Canada – EU Comprehensive Economic Trade Agreement leaked online.  The leak revealed that the EU was seeking some significant changes to Canadian IP laws.  Negotiations have continued and I have now received an updated copy of the draft chapter, complete with proposals from both the EU and Canada.  The breadth of the demands are stunning – the EU is demanding nothing less than a complete overhaul of Canadian IP laws including copyright, trademark, databases, patent, geographic indications, and even plant variety rights.

While there are some Canadian requests – for example, Canada plays Hollywood North by asking the EU to introduce an anti-camcording provision – virtually all the changes would require Canadian reforms.  In fact, while the Anti-Counterfeiting Trade Agreement garners the bulk of the attention, CETA would actually involve far more domestic change.  In some sections, the EU simply takes its own directives and incorporates them into the treaty.  For example, provisions on the liability of ISPs is taken directly from EU law, including the use of terms such as "information society service" – something that is defined under EU law but is meaningless in Canada. 

Notably, the draft includes many new rights for broadcasters.  These rights form part of a proposed Broadcast Treaty at WIPO that has failed to achieve consensus.  The EU is seeking to build support for the treaty by requiring Canada to implement many new provisions that would give broadcasters a host of new rights and force public places to pay additional fees for carry broadcasts.

Given the magnitude of the proposed changes, the price of a trade agreement is clear.  The EU is effectively demanding that Canada surrender its sovereignty over intellectual property law and policy. Some of the proposed changes in the Intellectual Property chapter (Chapter 20) of CETA include:


Copyright

The EU demands include:

  • compliance with WIPO Internet treaties
  • extension of the term of copyright to life of the author plus 70 years (Canadian law currently at life plus 50 years)
  • additional copyright term extensions for audiovisual works, anonymous works, and unpublished works
  • term of copyright for broadcasts for at least 50 years (Canada wants to limit to wireless broadcasts, while EU wants it to cover everything)
  • greater transparency for copyright collectives
  • new resale right for works of art
  • new exclusive right of fixation for broadcasts (Canada wants to limit to wireless broadcasts, while EU wants it to cover everything)
  • new exclusive right for broadcasters for retransmission in public places (ie. new fees for bars and other public places)
  • new distribution right
  • extension of the reproduction right to performers and broadcasters
  • extension of the communications right for performers, phonogram producers, film producers, and broadcasters.
  • anti-circumvention rules including provisions against devices that can be used to circumvent digital locks
  • protection for rights management information

These are all EU demands.  The only Canadian request is a yet to be specified provision on camcording.

Enforcement of IP Rights

The enforcement IP rights section contains literally pages of European law that the EU wants incorporated into Canada.  It addresses everything from ISP liability to injunctions to border measures to damages provisions.  The EU even wants new criminal sanctions added, but has yet to specify what those should be.  There are no Canadian requests here.  Rather, the EU wants Canada to discard its approach to the enforcement of intellectual property almost completely and simply adopt the EU model.

Trademarks

The EU demands include:

  • Canada to comply with the Trademark Law Treaty (Canada wants only to comply with the Singapore Treaty on the Law of Trademarks and to make reasonable efforts to accede to Madrid Agreement on international registration)
  • Canada to change its procedure for registration of trademarks
  • Canada to provide protections for well-known trademarks

Geographic Indications

Canada and the EU propose competing approaches for extending protections for geographic indications.  This applies to a wide range of products including agricultural products, wine, spirit drinks, and foodstuffs.  The EU's plan is far more extensive with provisions on protection, enforcement, rights of use, and scope of protection.  In fact, the EU even wants to create a Joint Committee on geographic indications charged with monitoring the rules between Canada and the EU.

Designs

The EU demands include:

  • Canada to accede to the Hague Agreement Concerning the International Registration of Industrial Designs
  • new protection for designs
  • new rights for registration of designs
  • term of protection for designs of at least five years

Patents

The EU demands include:

  • Canada to comply with Articles 1 – 16 of the Patent Law Treaty (Canada wants to "endeavour to accede" to the treaty)
  • further protection for medicinal or plant protection
  • additional protection blocking disclosure of pharmaceutical data that is submitted to regulatory authorities to third parties
  • new data protection for plant protection

Trade Secrets

Canada demands that the EU adopt the Canadian protection for trade secrets.

Toward an ACTA Super-Structure: How ACTA May Replace WIPO

[This post appears jointly here and at the PublicACTA site]

For the past two years, most of the ACTA discussion has centered on two issues: (1) substantive concerns such as the possibility of three strikes and a renegotiation of the WIPO Internet treaties; and (2) transparency issues.  The leak of the comprehensive ACTA text highlights the fact that a third issue should be part of the conversation.  The text reveals that ACTA is far more than a simple trade agreement.  Rather, it envisions the establishment of a super-structure that replicates many of the responsibilities currently assumed by the World Intellectual Property Organization.  Given the public acknowledgement by negotiating countries that ACTA is a direct response to perceived gridlock at WIPO, some might wonder whether ACTA is ultimately designed to replace WIPO as the primary source of international IP law and policy making.

I wrote about the ACTA threat to WIPO last year, arguing that successful completion of the ACTA negotiations would undermine the WIPO Development Agenda, since countries such as the U.S. and E.U. would have little incentive to advance the agenda.  The ACTA text suggests that it goes much deeper than just slowing progress at WIPO, it effectively replaces WIPO in many respects. Canada is the lead drafter of the institutional ACTA arrangements.

The current ACTA draft includes detailed provisions on committees, dispute resolution, and treaty formalities.  These include:

1.   The creation of an ACTA Oversight Committee. 

The committee would:

  • supervise ACTA implementation
  • facilitate amendments to ACTA
  • consider any other ACTA-related matter
  • establish standing committees, working groups or task forces to "undertake monitoring and the evaluation of the agreement." 
  • The EU would like the committee to "endorse best practice guidelines for implementing ACTA."
  • meet annually or bi-annually in Geneva (there is disagreement on whether every 1 or 2 years)

The committee would also serve as the source for resolving disputes.  The inclusion of a dispute resolution mechanism – again proposed by Canada – is proving controversial. New Zealand would like it excluded altogether, Australia wants the committee to merely facilitate the avoidance of disputes, and Japan wants to discuss later.  It would appear that Canada has bigger plans, proposing that the committte will "resolve disputes that may arise regarding its interpretation or application."  There are no specific details on how the dispute resolution system would function.
 
2.   The creation of an ACTA Secretariat

The country that serves as chair of the ACTA Oversight Committee would provide the secretariat.  There is currently some disagreement on this issue.  For example, Japan favours using an international organization to provide secretariat services, Korea wants to entrust the Secretariat to the WTO, and Morocco supports the creation of a permanent secretariat (ie. not rotating with the committee chair).

3.   Permit ACTA observers

The current draft provides:

"Countries candidate to become a Party to the Agreement may be invited [by the Committee] to attend sessions or parts thereof of the Oversight Committee as observers.  An invitation under the same status may be extended [by the Committee] to international organizations active in the field of intellectual property and to non-governmental groups of intellectual property stakeholders."

Australia supports adding non-Party states, noting this could help enforcement efforts with non-parties and increase global coordination.

4.   Open ACTA to other countries

There is some disagreement on who else may join ACTA.  Proposals include being an existing member of WIPO, the WTO, or the United Nations.  ACTA itself will take effect 90 days after five countries have deposited their instruments of ratification, acceptance, approval or accession.  Australia has proposed keeping ACTA open for signature for a long period of time – up to five years – to provide potential members who are not participating in the negotiations time to sign.

5.   Capacity Building and Technical Assistance

A key role for WIPO in recent years has been to provide capacity building and technical assistance to developing countries.  ACTA contains specific provisions to assume this role.  In fact, Morocco is calling for a "special allocation fund" to finance these ACTA intiatives which can include "promoting the culture of intellectual property", training, capacity building in institutions, statistical evidence gathering, joint operations, and enforcement.

While many of these issues are not slated for discussion at the next round of talks in New Zealand – some countries want the substantive issues ironed out first – Canada has proposed an ambitious ACTA infrastructure that extends beyond a typical trade agreement.  In fact, when contrasted with the current WIPO functions – regular meetings, committees, technical assistance, a secretariat – ACTA would clearly replicate WIPO in many important ways.

Lessig and Goldsmith on ACTA’s Constitutional Concerns

Professors Larry Lessig and Jack Goldsmith published an op-ed in the Washington Post explaining why ACTA raises serious constitutional concerns in the United States.

Hammerstein on ACTA

David Hammerstein, a former Member of the European Parliament, has an interesting post on the behind-the-scenes ACTA activity.

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