Tacdconference actaslides

ANTI-COUNTERFEITING TRADE AGREEMENTOr How I Learned to Stop Worrying and Love Information Customs

1Wednesday, December 29, 2010

ACTA HistoryAnti-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?


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


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.


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.


Information CustomsWorld 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


Criminal ProvisionsCriminal 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.


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.


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?


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.


Multi-lateralismCoalition 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


Industry Plansworld 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.


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


Bush Administration

Coalition of the Willing

Shock and Awe

Surge

Transparency & Accountability

Terrorism, Politics of Fear.

Faith-based IP to evidence-based IP.


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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