Secret Trade Negotiations on IPR Rules Are an Abuse of Power

Over the past several months, the Obama Administration has had a spirited internal debate over secrecy, in the context of a new trade agreement on the enforcement of intellectual property rights. So far, secrecy is winning.

The Anti-Counterfeiting Trade Agreement (ACTA) is the name of this agreement, even though it is only marginally related to counterfeiting. Recently some of the 38 countries in the negotiations released an outline of the topics under discussion, here, but refuse to make public the actual proposals that have been tabled.

For about two years, the U.S. government has claimed the negotiations can be shielded from disclosure under laws protecting the national security of the United States.

Below is the November 10, 2009 outline of the topics being covered in this negotiation. Is it an abuse of power to keep these negotiations secret from the public? Before you answer, consider the following:

1. Until the ACTA, nearly all global negotiations on multilateral intellectual property norms were comparatively much more open and transparent, a fact the U.S. and other governments frequently lie about to persons who are not well informed about international norm setting. Next time you hear or read a government official tell you that negotiations on IPR norms are "always" secret, review these documents to see how much lying is taking place:

ATTACHMENT 1. ACTA is secret. How transparent are other other global norm setting exercises?

ATTACHMENT 2. Transparency of negotiating documents in selected fora

ATTACHMENT 3. Participation by the public in selected negotiations

2. The Obama administration has recently developed a twisted new response to the mounting demands for transparency of this negotiation that actually makes things worse. Now the White House invites well connected lobbyists, corporate law firms and big companies to see the "national security" secret documents under non-disclosure agreements that by contract prohibit public criticisim or discussion of the ACTA text. (See: White House shares the ACTA Internet text with 42 Washington insiders, under non disclosure agreements).

Ok, now let's review the topics under discussion that our government, and 37 other governments, believe should be secret, until the agreement is finalized:

The Anti-Counterfeiting Trade Agreement - Summary
of Key Elements Under Discussion

CHAPTER ONE
INITIAL PROVISIONS AND DEFINITIONS

This chapter will focus on clarifying issues that arise throughout the agreement, such as Objective, Scope and Definitions. The chapter may also include interpretive principles.

CHAPTER TWO
LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Section 1: Civil Enforcement

Civil enforcement refers to providing courts or other competent authorities with the authority to order/take specific actions when it is established that a party has violated intellectual property laws, and the rules on when and how to use those powers. The issues under discussion in this section include:

• scope of the section - which intellectual property rights would be covered by the provisions of this section;
• the definition of adequate damages and the question of how to determine the amount of damages, particularly when a right holder encounters difficulties in calculating the exact amount of damage it has incurred;
• the authority of the judicial authorities to order injunctions which require that a party desist from an infringement;
• remedies, including the destruction of goods that have been found to be infringing an intellectual property right and under what conditions and to what extent materials and implements that have been used in the manufacture or creation should be destroyed or disposed of outside the channels of commerce;
• provisional measures, such as the authority for judicial authorities or other competent authorities to order, in some circumstances, the seizure of goods, materials or documentary evidence without necessarily hearing both parties; and
• the reimbursement of reasonable legal fees and costs.

Section 2: Border Measures

Border measures refer to actions that customs and other competent authorities would be authorized to take to prevent goods that infringe intellectual property rights from crossing borders. The term also describes the procedures that must accompany these actions. Elements under discussion in this section include:

• scope of the section - which intellectual property rights will be covered, and whether border measures should only apply to importations or should equally apply to the export and the transit of goods;
• a de minimis exception that could permit travelers to bring in goods for personal use;
• procedures for right holders to request customs authorities to suspend the entry of goods suspected to infringe intellectual property rights at the border;
• authority for customs to initiate such suspension ex officio (on their own initiative, without a request from the rights holder);
• procedures for competent authorities to determine whether the suspended goods infringe intellectual property rights;
• measures to ensure that infringing goods are not released into free circulation without the right holder's permission, and possible exceptions;
• the forfeiture and destruction of goods that have been determined to infringe intellectual property rights, and possible exceptions;
• responsibility for storage and destruction fees;
• capacity of competent authorities to require right holders to provide a reasonable security or equivalent assurance sufficient to protect the defendant and to prevent abuse, and
• authority to disclose key information about infringing shipments to right holders.

Section 3: Criminal Enforcement

This section relates to the cases for which Parties should provide for criminal procedures and penalties. Issues being discussed under this heading include:

• clarifying the scale of infringement necessary to qualify for criminal sanctions in cases of trademark counterfeiting and copyright and related rights piracy;
• clarifying the scope of criminal penalties;
• in which cases the relevant authorities should be empowered to take action against infringers on their own initiative (ex officio, i.e. without complaint by right holders) with respect to infringing activities;
• the authority to order searches and/or seizure of goods suspected of infringing intellectual property rights, materials and implements used in the infringement, documentary evidence, and assets derived from or obtained through the infringing activity;
• the authority of judicial authorities to order the forfeiture and destruction of the infringing goods;
• the authority of judicial authorities to order the forfeiture of the assets derived from or obtained, directly or indirectly, through the infringing activity;
• the authority of judicial authorities to order forfeiture and/or destruction of materials and implements that have been used in the production of the infringing goods;
• criminal procedures and penalties in cases of camcording motion pictures or other audiovisual works; and
• criminal procedures and penalties in cases of trafficking of counterfeit labels.

Section 4: Intellectual Property Rights Enforcement in the Digital Environment

This section of the agreement addresses some of the special challenges that new technologies pose for enforcement of intellectual property rights. Elements under discussion in this section include the availability of remedies:

• in cases of third party liability, without prejudice to the availablity of exceptions and limitations;
• related to infringing material online, including limitations on the application of those remedies to online service providers;
• related to the circumvention of technological protection measures, including the availability of exceptions and limitations;
• related to the protection of right management information, including the availability of exceptions and limitations.

CHAPTER THREE INTERNATIONAL COOPERATION

Cross-border trade in counterfeit and pirated goods is a growing global problem that often involves organized criminal networks. ACTA participants need to work together to tackle this challenge. The chapter on international cooperation is expected to address the following types of issues:

• recognition that international enforcement cooperation is vital to realize fully effective protection of intellectual property rights;
• cooperation among the competent authorities of the Parties concerned with enforcement of intellectual property rights, consistent with existing international agreements;
• sharing of relevant information such as statistical data and information on best practices among the Signatories in accordance with international rules and related domestic laws to protect privacy and confidential information; and
• capacity building and technical assistance in improving enforcement, including for developing country parties to the agreement and for third countries where appropriate.

CHAPTER FOUR ENFORCEMENT PRACTICES

Where chapter two will focus on the laws that should be in place to promote better enforcement of intellectual property rights, this chapter is intended focus on the methods used by authorities to apply those laws. Areas that the enforcement practices chapter may cover include:

• fostering of expertise among competent authorities in order to ensure effective enforcement of intellectual property rights;
• collection and analysis of statistical data and other relevant information such as best practices concerning infringement of intellectual property rights;
• internal coordination among competent authorities concerned with enforcement of intellectual property rights, including formal or informal public/private advisory groups;
• measures to allow customs authorities to better identify and target shipments, which are suspected to contain counterfeit or pirated goods;
• publication of information on procedures regarding the enforcement of intellectual property rights, and
• promotion of public awareness of the detrimental effects of intellectual property rights infringement. The obligations or recommendations in this chapter for enforcement practices and sharing of information with the public shall take into account and be consistent with existing international agreements and the need to protect investigative techniques, confidential law enforcement information and privacy rights.

CHAPTER FIVE INSTITUTIONAL ARRANGEMENTS

This chapter will include all necessary provisions for the institutional set up, including questions related to the implementation of the agreement, how and when to hold meetings of the Parties, and other administrative details of the agreement.

CHAPTER SIX
FINAL PROVISIONS

The final provisions of the agreement include details on how the agreement will function, such as how to become a party to the agreement, how to withdraw from the agreement and how to amend the agreement in the future.