No one is opposed to efforts that seek to curb counterfeiting and piracy, especially when those efforts seek to prevent the entry of unsafe products into streams of commerce. However, what many are opposed to is increasing already high penalties for IP infringement and increasing the rights of content owners at the expense of consumers in the name of curbing counterfeiting and piracy. What is worse is when this happens through an international treaty that is not open to public scrutiny. Case in point: the Anti Counterfeiting Trade Agreement (ACTA).
In October 2007, the United States Trade Representative Susan Schwab announced that the U.S. would be negotiating with key trading partners, Canada, the European Union, Japan, Korea, Mexico, New Zealand and Switzerland, in drafting this agreement. The new treaty would focus on three areas: “strengthening international co-operation, improving enforcement practices and providing a strong legal framework for IPR enforcement”. The US government has said that it intends to move fast on the treaty. In fact, negotiations were supposed to begin early this year.
Although couched as an anti-counterfeiting effort, as the noted Canadian scholar Michael Geist notes, the treaty is likely to have provisions that would call for increase in domestic law penalties for intellectual property infringement. Two points support this prediction. First, trade representative Schwab has said in her press release that the new treaty would aim to set enforcement benchmarks that are higher than the benchmarks set in the Agreement on Trade Related Aspects of Intellectual Property Rights or TRIPS. TRIPS directs member countries to provide effective enforcement measures for protection of IP including making available to rights holders the remedies of injunction, damages sufficient to compensate for infringement, and seizure of the goods involved in the infringement. Second, a discussion paper on ACTA prepared by the Australian government explains that some of the proposals of ACTA include providing for strong criminal and civil enforcement measures. The PRO IP Act has shown us how penalties for IP infringement can be increased in measures that are intended to deal with counterfeiting and piracy. Alex and Sherwin’s analyses of the provisions of the PRO IP Act can be found here and here.
A treaty such as ACTA that might call for changes in domestic law that would affect interests of US citizens should be negotiated in an open manner. The government should seek comments from interested parties before making commitments internationally. Precedent for such public input exists. In May 2007, the Copyright Office and the United States Patent and Trademark Office held a roundtable discussion seeking public comment on the WIPO Broadcast Treaty. In the context of ACTA, the Australian government has sought comment from its citizens about whether or not Australia should join negotiations for this treaty. The US government should present the same opportunity to its citizens.