Public Knowledge filed comments regarding the proposed Anti-Counterfeiting Trade Agreement (ACTA) last Friday advising the office of the United States Trade Representative (USTR) that ACTA should not adversely affect the rights of consumers and technology innovators in its efforts to curb counterfeiting and piracy.
We noted that ACTA should not paint with the same brush activities that have varied impact on the public and deserve different levels of enforcement. For example, the treaty should not treat large-scale commercial manufacturers of counterfeit CDs and individual P2P file sharers in the same manner in imposing penalties for copyright infringement. Also, the treaty should not adversely impact the openness of the Internet by mandating network filtering by Internet Service Providers (ISPs). Not only would such filters be ineffective in preventing “piracy”, they would raise serious privacy concerns. Neither should the treaty lead to more onerous TPM provisions within US law. The DMCA, already provides a blanket ban against circumvention of TPMs without taking due account of the importance of fair use.
Despite the invitation for public comments, the openness of the process continues to be suspect. The official “background paper” of the USTR linked to the notice provides hardly any information about the activities targeted by the treaty. However, USTR’s own statements lead one to believe that the office has a well-formulated idea of the proposed treaty’s provisions. The USTR has said that concepts involved in the treaty have been “vetted with multiple countries” and expressed the desire to complete the agreement “as quickly as possible”. It also wants to set higher enforcement benchmarks in ACTA than those set by the Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS).
Given these facts, the USTR should have provided more extensive information about proposed treaty provisions so that interested parties could have addressed their comments to specific proposals. Instead its background paper merely identified increasing international co-operation and strengthening enforcement as its goals. As for specific proposals to achieve these goals, the paper identified general areas such as “criminal enforcement”, “civil enforcement”, and “Internet distribution”.
Although the invitation for public comment lacked openness, we hope that the USTR will invite public comment again when the actual text of the treaty becomes available. This would ensure effective public participation in the process.