ACTA

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The Anti-Counterfeiting Trade Agreement (ACTA) is a proposed plurilateral trade agreement which is claimed by its proponents to be in response "to the increase in global trade of counterfeit goods and pirated copyright protected works." The scope of ACTA is broad, including counterfeit physical goods, as well as "internet distribution and information technology".

In October 2007 the United States, the European Community, Switzerland and Japan announced that they would negotiate ACTA. Furthermore the following countries have joined the negotiations: Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates, Canada and the European Union. The ACTA negotiations have been conducted in secrecy until on 22 May 2008 when a discussion paper about the proposed agreement was uploaded to Wikileaks, and newspaper reports about the secret negotiations quickly followed.

Negotiations were originally anticipated to conclude by the end of 2008, however in November 2008 the European Commission stated that negotiations were likely to continue in 2009. The next (sixth) of negotiations was hosted by the Republic of Korea in Seoul on November 4 to 6, 2009. At the fifth round of negotiations, in Morocco in July 2009, participants indicated their intention was to conclude the agreement "as soon as possible in 2010". According to New Zealand ACTA would "establish a new international legal framework" and "the goal of ACTA is to set a new, higher benchmark for intellectual property rights enforcement that countries can join on a voluntary basis."

Critics argue ACTA is part of a broader strategy of venue shopping and policy laundering employed by the trade representatives of the US, EC, Japan, and other supporters of rigid intellectual property enforcement. This strategy entails negotiating for terms in international treaties that might prove too politically unpopular to pass in national assemblies. Similar terms and provisions currently appear in the World Customs Organization draft SECURE treaty, and critics have argued that the anticircumvention provisions of Title I of the Digital Millennium Copyright Act were similarly passed after policy laundering via treaties negotiated through the World Intellectual Property Organization.

Participants in The 6th Round of negotiations on Anti-Counterfeiting Trade Agreement Seoul, November 4-6, 2009 reaffirmed their commitment to continue their work with the aim of concluding the agreement as soon as possible in 2010. Participants in the meeting also agreed that the next meeting - The 7th Round of negotiations - would be hosted by Mexico in January 2010. This next meeting will possibly be held at the end of January 2010 according to Mexican IMPI. According to this article, the meeting is to take place "tentatively during the week of January 25, 2010"

The 8th Round of negotiations will be held in Wellington, "New Zealand in the week of April 12, 2010".

Contents

Public hearings

March 22, 2010

ACTA & IPRED2

The following text comes from an Intellectual Property Watch article from december 2009:

"While the Swedish EU presidency had favoured greater transparency with regard to the ACTA, discussions on this are still ongoing, according to Magnus Fridh, special adviser at the Division for Intellectual Property and Transport Law Ministry of Justice in Sweden. Fridh in reply to a question from Intellectual Property Watch rejected the notion that there was a clear timetable. But he confirmed that a representative from the Directorate General Justice, Freedom and Civil Rights announced that a new draft for IPRED 2 would be tabled in May or June.

He declared that “nothing prevents the EU and/or its member states from signing ACTA before such a directive is in place.” An expert at the Commission answering a request from Intellectual Property Watch said that ACTA and the criminal sanctions of a EU IPRED 2 have a connection, but that “a particular arrangement was established that should allow the EU to successfully achieve its objectives for ACTA even without IPRED 2.”"

Provisions

Although the treaty's title suggests that the agreement only covers counterfeit physical goods (such as medicines), the proposed treaty has a broader scope, including "piracy over the Internet". In an ACTA fact sheet published in November 2008 the European Commission stated that "There is, at this stage, no agreed text." A leaked document entitled Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement suggests that the following provisions will be included in ACTA: new legal regimes to "encourage ISPs to cooperate with right holders in the removal of infringing materials", criminal measures and increased border search powers.

In reaction to the leaks the European Commission in November 2008 stated that:

"The negotiations are still ongoing. This means that there is no agreement yet, and that, at the time of writing this fact sheet, there is not even a draft text on which negotiating parties converge. A number of "texts", wrongly presented as draft ACTA agreements have been circulated on the web. At a preliminary stage of the discussions about the idea of a future ACTA, some of the negotiating parties have submitted concept papers, to present their initial views of the project to other partners. Some of these concept papers have been circulated on the net or commented in the press and presented as "draft ACTA texts or negotiating guidelines", which they are not."

Details published in February 2009 indicate that ACTA has six main chapters. Most of discussion to date is focused on the "Enforcement of Intellectual Property Rights" chapter, which has four sub chapters:

  1. Initial Provisions and Definitions;
  2. Enforcement of IPR;
    1. Civil Enforcement
    2. Border Measures
    3. Criminal Enforcement
    4. Intellectual Property Rights Enforcement in the Digital Environment
  3. International Cooperation;
  4. Enforcement Practices;
  5. Institutional Arrangements;
  6. Final Provisions.

ISP cooperation

The leaked document includes a provision to force Internet Service Providers (ISPs) to provide information about suspected copyright infringers without a warrant, making it easier for the record industry to sue music file sharers and for officials to shut down non-commercial BitTorrent websites such as The Pirate Bay.

FFII - Analysis Anti-Counterfeiting Trade Agreement

Executive Summary

Behind closed doors, the EU, US, Japan and other countries are negotiating ACTA. No drafts are published. The negotiating parties use a too broad definition of piracy. In an obfuscated way, the definition comes down to "willful large scale infringements". As a result, bona fide entrepreneurs and civilians are criminalized, and excessive civil and administrative measures can be invoked against them. The following examples may be infringements. If they are, they would fall within the definition:

  • a newspaper, whistle blower or weblogger revealing a document,
  • ambiguous cases of trademark confusion,
  • parallel importation (buying and selling of genuine products),
  • making a product or medicine (in many sectors, there are so many patents, with unclear scope and validity, it is impossible to tell whether one violates a patent),
  • the production of spare parts (may violate an unexamined design right, with unclear scope and validity),
  • an office worker emailing a copy of a market research report to his colleague at work,
  • emailing a list of people (may violate an unexamined database right, with unclear scope and validity),
  • a library, in order to preserve digital sound recordings for posterity, unlawfully breaking the technical protection measure wrapping the digital recording each time it lawfully receives a sound recording either by purchase or by legal deposit,
  • and possibly: youngsters enthusiastically sharing their favorite music with friends.

In all these cases, the rights holder can go to a civil court for damages. But harsh anti-piracy measures, meant to fight criminal organizations, are excessive. A too broad definition may have far reaching consequences on legal certainty, innovation, competitiveness, freedom of speech, privacy and access to medicines, software and the Internet. ACTA could become a dangerous tool for abusive strategies.

It is essential the public and parliaments can scrutinize ACTA. It is unclear whether they will be able to do that. It is unclear whether the final draft will be published prior to Political Agreement in the EU Council. ACTA may pass silently during Parliamentary recess.

In the EU decisions are normally taken as openly as possible and as closely as possible to the citizen. Preparatory legal texts are published. If full disclosure is not possible, parts are published. Translations are made prior to adoption in the Council. With ACTA, no drafts or translations are published. In a Resolution, the European Parliament called for disclosure of ACTA preparatory drafts, including progress reports, and of the Commission's negotiating mandate. The Council did not release documents.

In the case of trade agreements, both the EU Member States and the European Parliament have vetoes on aspects of the trade agreement. The following vetoes apply to ACTA:

  • in so far as ACTA will relate to trade in cultural, audiovisual and educational services, the Member States have a veto,
  • in so far as ACTA will relate to non commercial acts, the Member States have a veto,
  • the Member States have a veto on criminal measures in ACTA,
  • the European Parliament has vetoes if ACTA entails amending an act adopted under the procedure referred to in Article 251 or if a specific institutional framework is established by instituting cooperation procedures,
  • furthermore, the Community is not competent to take disproportional measures.

ACTA's secrecy makes it impossible to assess whether the vetoes apply and should be used. In order to safeguard transparency and parliamentary legislative power, we call upon the parliaments of Europe, both the national as the European Parliament, to set parliamentary scrutiny reservations. If ACTA's final draft indeed combines a too broad definition of piracy with harsh measures, we call upon the parliaments to exercise vetoes against ACTA.

See also FFII ACTA page

Non disclosure agreement

Classified Information Nondisclosure Agreement

I, __________, intending to be legally bound, accept the obligations in this Agreement in return for obtaining access to classified information. As used in this Agreement, classified information means information that has been determined under Executive Order 12958 to require protection from disclosure in the interest of national security. Classified information includes information, such as trade agreement negotiating texts, that the United States Government (USG) has provided to or received from another government or an international organization in an expectation that it would be held in confidence.

[snip]

Actors and lobbies

Confirmed insiders

Confirmed insiders (also note the few internet friendly insiders) having signed non disclosure agreements and seen the U.S. proposed Internet text for ACTA:

USTR says these people signed a Non-Disclosure Agreement (NDA) to see the U.S. proposed Internet text for ACTA:

  • Emery Simon, Business Software Alliance (BSA)
  • Jesse Feder, Business Software Alliance (BSA)
  • Bill Patry, Google
  • Daphne Keller, Google
  • Johanna Shelton, Google
  • Lisa Pearlman, Wilmer Hale
  • Robert Novick, Wilmer Hale
  • Bob Kruger, Consultant to eBay
  • Brian Bieron, eBay
  • Hillary Brill, eBay
  • Sarah Deutch, Verizon Communications
  • David Weller, Wilmer Hale
  • Steve Metalitz, International Intellectual Property Alliance (IIPA)
  • Mitchell Silberberg & Knupp LLP
  • Veronica O'Connell, Consumer Electronics Association (CEA)
  • Jim Burger, Dow Lohnes, Counsel to Intel
  • Jonathan Band, Jonathan Band PLLC
  • Gigi Sohn, Public Knowledge
  • Rashmi Rangnath, Public Knowledge
  • Sherwin Siy, Public Knowledge
  • Maritza Castro, Dell
  • Jeff Lawrence, Intel
  • Mathew Schruers, CCIA
  • David Sohn, Center for Democracy and Technology (CDT)
  • Michael Pericone, Consumer Electronics Association (CEA)
  • Ryan Triplette, Intel
  • Janet O'Callaghan, News Corporation
  • Chris Israel, PCT Government Relations
  • Alicia Smith, Sony Pictures Entertainment
  • Cameron Gilreath, Time Warner
  • Seth Greensten, Constantine Cannon LLP, for Consumer Electronics Association (CEA)
  • Daniel Dougherty, eBay
  • David Fares, News Corporation

Persons who received the ACTA Internet text who are members of ITAC 15 - the Industry Trade Advisory Committee on Intellectual Property Rights:

  • Anissa S. Whitten, Vice President, International Affairs and Trade Policy, Motion Picture Association of America, Inc.
  • Eric Smith, President, International Intellectual Property Alliance
  • Neil I. Turkewitz, Executive Vice President, International, Recording Industry Association of America
  • Sandra M. Aistars, Assistant General Counsel, Intellectual Property, Time Warner Inc.
  • Stevan D. Mitchell, Vice President, Intellectual Property Policy, Entertainment Software Association
  • Thomas J. Thomson, Executive Director, Coalition for Intellectual Property Rights
  • Timothy P. Trainer, President, Global Intellectual Property Strategy Center, P.C., Zippo Manufacturing Company

Persons who received the ACTA Internet text who are members of ITAC 8 - the Industry Trade Advisory Committee on Information and Communications Technologies, Services, and Electronic Commerce:

  • Jacquelynn Ruff, Vice President, International Public Policy, and Regulatory Affairs Verizon Communications Inc.
  • John P. Goyer, Vice President, International Trade,Negotiations and Investment, U.S. Coalition of Service Industries
  • Mark F. Bohannon, General Counsel and Senior Vice President, Public Policy, Software and Information Industry Association

Lobby interests

The following table represents companies and industry associations lobbying for ACTA. The Confirmed column means if the entity (or a subsidiary company) is doing, directly, pro-ACTA lobbying. NDA is set to yes if members of the company have Non-Disclosure Agreements to see ACTA documents, ITAC is set if the entity is on the USTR's advisory boards with access and input in ACTA. The rest of columns are affiliations to various pro-ACTA organizations.

Lobby interests
Name Abbr. Type Confirmed NDA ITAC IIPA AAP BSA ESA IFTA MPAA NMPA RIAA PhRMA CropLife CIPR CACP IPO USCIB
International Intellectual Property Alliance IIPA Ind. assoc. Yes Yes Yes Yes  ? No No  ?
Business Software Alliance BSA Ind. assoc. Yes Yes  ? Yes Yes  ? Yes  ? Yes
Coalition for Intellectual Property Rights CIPR Ind. assoc. Yes  ? Yes Yes  ?  ?  ?
Consumer Electronics Association CEA Ind. assoc. Yes Yes  ?  ? Yes  ?  ?
CropLife International Ind. assoc. Yes  ? Yes Yes  ? Yes  ? Yes
Entertainment Software Association ESA Ind. assoc. Yes  ? Yes Yes Yes  ? Yes  ? Yes
Intellectual Property Owners Association IPO Ind. assoc. Yes  ? Yes  ? Yes Yes  ?
Motion Picture Association of America MPAA Ind. assoc. Yes  ? Yes Yes Yes  ? Yes  ?  ?
Recording Industry Association of America RIAA Ind. assoc. Yes  ? Yes Yes Yes  ? Yes  ?  ?
Software and Information Industry Association SIIA Ind. assoc. Yes  ? Yes  ? Yes  ?  ?
U.S. Coalition of Service Industries USCSI Ind. assoc. Yes  ? Yes  ?  ?  ?  ?
United States Council for International Business USCIB Ind. assoc. Yes  ?  ? Yes  ? Yes
General Electric (owns 80% NBC Universal) Company Yes  ?  ? Indirectly  ?  ?  ? Yes* Yes*  ?  ?  ?  ? Yes Yes* Yes Yes
News Corporation Company Yes Yes  ? Indirectly Yes* Yes*  ? Yes  ? Yes
Pfizer Company Yes  ? Yes No No No No No No No No Yes  ?  ? Yes Yes Yes
Sanofi-Aventis Company Yes  ?  ? No No No No No No No No Yes  ?  ? Yes Yes  ?
Time Warner Company Yes Yes Yes Indirectly  ?  ?  ? Yes* Yes*  ? Yes* No No  ? Yes  ? Yes
Sony Company Yes Yes*  ? Indirectly  ?  ? Yes*  ? Yes*  ? Yes* No No Maybe** Yes  ? Maybe**
Verizon Communications Company Yes Yes Yes No No No No No No No No No No  ? Yes  ? Yes
The Walt Disney Company Company Yes  ?  ? Indirectly Yes*  ? Yes* Yes* Yes*  ? Yes* No No  ? Yes  ? Yes
Coalition Against Counterfeiting and Piracy CACP Ind. assoc.*** Yes  ?  ?  ?  ?  ?  ?  ?  ?  ?  ?  ?  ?  ?  ?  ?  ?
Global Intellectual Property Strategy Center, P.C GIPSC Company Yes  ? Yes  ?  ?  ?  ?  ?  ?  ?  ?  ?  ?  ?  ?  ?  ?
Association of American Publishers AAP Ind. assoc. No  ? Yes Yes Yes  ? Yes  ?  ?
Independent Film and Television Alliance IFTA Ind. assoc. No  ? Yes Yes Yes  ? No 28112009  ?  ?
National Music Publishers Association NMPA Ind. assoc. No  ?  ? Yes Yes  ? No 28112009  ?  ?
Pharmaceutical Research and Manufacturers of America PhRMA Ind. assoc. No  ?  ? Yes  ? Yes  ? Yes
Monsanto Company Company No  ? Yes Yes  ? Yes Yes Yes
Viacom Company No  ?  ? Indirectly  ?  ?  ? Yes* Yes*  ?  ? No No  ? Yes  ?  ?
  • * Through subsidiary companies.
  • ** Potentially through law firms Lovells and/or Baker&McKenzie
  • *** Leaded by the U.S. Chamber

Lobby companies

This section is dedicated to lobby companies active in ACTA. These companies are contracted by large corporations to lobby for them.

The Gorlin Group

The Gorlin Group is Jacques Gorlin's lobby company. Gorlin has been lobbying for the pharmaceutical industry for 20 years. He was Director of the Intellectual Property Committee, a industry coallition which was the main lobbyst in TRIPS. He's Vice-Chairman of ITAC 15 and member of the Commission on Intellectual Property of the International Chamber of Commerce.

  • Clients (companies): Bristol-Myers Squibb, DuPont, FMC Corporation, General Electric, Gilead, GlaxoSmithKline, Hewlett-Packard, IBM, Johnson & Johnson, Lilly, Merck, Microsoft, Monsanto, Novartis, Pfizer, Pharmacia, Procter & Gamble, Rockwell International, Schering Plough, Texas Instruments, Time Warner, Westinghouse
  • Clients (industry associations): American BioIndustry Alliance (ABIA), Business Roundtable, Intellectual Property Committee (IPC), International Federation of Pharmaceutical Manufacturers & Associations (IFPMA), INTERPAT, Pharmaceutical Manufacturers Association of South Africa, Pharmaceutical Research and Manufacturers Association (PhRMA), RDPAC (R&D-based Pharmaceutical Association in China)
Global Intellectual Property Strategy Center

The Global Intellectual Property Strategy Center is Timothy Trainer's lobby company. Trainer was attorney in the U.S. Patent and Trademark Office's (PTO) Office of Legislative and International Affairs. He assumed the position of President of the Washington, D.C.-based International AntiCounterfeiting Coalition (IACC) in September 1999. Trainer has represented the US in the WIPO and has provided IP technical support to the USTR and other US agencies. He founded the Global Intellectual Property Strategy Center, P.C. (GIPSC), in March 2005. He's member of the ITAC 15 (representing the Zippo Manufacturing Company).

Unconfirmed lobby interest

Others (unconfirmed)

  • Vivendi (owns Universal Music Group (UMG))
  • Warner Music Group (WMG)
  • Broadcast Music, Inc (BMI)
  • American Association of Independent Music (A2IM)
  • American Federation of Television and Radio Artists (AFTRA)
  • American Society of Composers, Authors and Publishers (ASCAP)
  • American Society of Media Photographers, Inc. (ASMP)
  • Commercial Photographers International
  • Directors Guild of America (DGA)
  • Evidence Photographers International Council
  • International Alliance of Theatrical Stage Employees (IATSE)
  • Picture Archive Council of America (PACA)
  • Professional Photographers of America (PPA)
  • Reed Elsevier Inc.
  • Society of Sport & Event Photographers
  • Stock Artists Alliance
  • Student Photographic Society
  • The Advertising Photographers of America

Copyright industry allies

Spain

  • Ángeles González-Sinde (Minister of Culture): comes from the film industry, she's legislating everything the copyright lobbies tell her to. Most recently, ACTA-like laws including file-sharing sites shutdown without judicial orderer, by a commission appointed by her.
  • Ignasi Guardans (Director of Instituto de la Cinematografía y las Artes Audiovisuales (ICAA), the highest responsible for policies related to the film industry. He and his family have interests in film producers. He's a former MEP and was one of the main Spanish advocates for the copyright-industry-ammendments on the Telecoms Package.

Campaigns

International

Twitter: stoppacta

Australia

Canada

Europe

Japan

Jordan

Mexico

Twitter: OpenActa

Morocco

New Zealand

Twitter:

Singapore

The Republic of Korea

The United Arab Emirates

United States of America

Knowledge Ecology International

Twitter:

La Quadrature Du Net

Twitter: La Quadrature du Net

Electronic Frontier Foundation

Twitter: Electronic Frontier Foundation

European Digital Rights

Twitter: European Digital Rights

See also

External links

English

Spanish

Swedish

French

German

Poland

Italian

Belgian

Dutch

Czech Republic

Portuguese

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