Enhanced Efforts at Transparency on ACTA

by Mark Esper

This week, U.S. officials and representatives from our key trading partners are meeting in Seoul, Korea to further negotiations on the Anti-Counterfeiting Trade Agreement (ACTA). The Global IP Center (GIPC) is encouraged to see these efforts moving forward, as we believe an ambitious ACTA will set a high bar for IP protection and enforcement around the world. While the GIPC supports the administration’s efforts to conclude a robust and comprehensive ACTA, we also note that a successful agreement should do the following:

• Comply with existing U.S. laws;
• Build upon existing international rules, in particular on the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), to produce a measurable improvement in the prevailing legal framework for the protection and enforcement of IP rights;
• Complement specific provisions of recent free trade agreements (FTAs), especially those with Korea and Oman;
• Include provisions that acknowledge the fact that IP theft takes place in both physical and online environments; and
• Include an effective and credible mechanism to monitor and provide incentives to encourage parties’ compliance with obligations.

The U.S. Chamber is unequivocally supportive of transparency and has been satisfied with the steps USTR has taken to make the ACTA negotiation process transparent.  Indeed, we have called for the maximum transparency possible consistent with other like negotiations and what our partners will agree to.  That said, USTR has encouraged participation from interested citizens, businesses, and organizations - including those who question ACTA - through town hall meetings and other public forums. For instance, in preparation for this upcoming round of negotiations, USTR has opened a dialogue with domestic stakeholders from various areas of expertise for their views and inputs on ACTA. 

In an effort to maximize transparency while preserving the right of our ACTA partners to effectively negotiate in private, USTR has invited private groups and persons to review the negotiating text, provided they sign a non-disclosure agreement. In fact, as reported by USTR, over half of these individuals are critics of ACTA. Despite what some ACTA critics allege, only a handful of business organizations who support the agreement have seen the text; the Chamber is not one of them.

We understand that the negotiation process requires the need for USTR and our trading partners to effectively exchange views and bounce ideas of one another in private. This process is no different from how previous agreements are negotiated. We are confident that the current process will allow all views to be considered and hope that the negotiations will—and preferably sooner rather than later--result in a strong agreement that will help advance the protection of IP rights around the world that are so critical to job creation, economic growth, and human progress.

Comments

[The Mad Hatter]

Transparency? Winston Smith would have no problem understanding exactly what you mean.

[Nick]

The Obama Administration promised transparency, yet here you are defending secrecy because that is how it has always been done.

I am appalled by your organization's support of ACTA and the secrecy around proposed ACTA terms. With this week's leak of the proposed ACTA terms, your administrations claims of "national security" are obviously unfounded. The American People believe you are lying because you have sold them out to international special interest who wish to oppress people all over the world over commercial transgressions. There is no evidence that the egregious enforcement of copyright law against individual citizens will make people buy more product. Losses due to piracy are imagined. Reports sighting estimates of losses are completely fabricated, and the studies are paid by the industries that would benefit by these fabricated numbers.

ACTA proposed terms only gets people to do what their powerful bosses think they should do, using their gut and not real data. This turns into campaign contributions that lead to passing misguided treaties. Your responsibility is to the welfare of the US people, not the RIAA and MPAA.

As we have seen with scare-tactic motivated prosecution of citizens for non-commercial file sharing by the RIAA, file sharing keep getting more popular, not less. This deterrent does not work, and neither will tougher laws. I can only imagine that lobbyists money has corrupted your office as you stand behind the heinous proposals in the ACTA, hide the details from citizens that effect them directly.

Sighting the importance of ACTA in the guise of eliminating counterfeit is also upsetting. Keeping generic drugs to help people in the third world at the insistence of the pharma lobby is entirely unethical. Letting people die to increase shareholder value: I guess that is the American way?

Until your department can show peer reviewed, independent research that tougher laws against IP transgressions will make people buy instead of infringe, I urge you to ask your colleagues to walk away from the ACTA talks, and actively disband this organizations. It is incumbent on businesses to capture the value they create with a business model that does not oppress the people of the world over for the misguided and false benefit of the elite. We need more flexible IP, not stronger. Kill the DMCA. Prosecute these elite companies buying legislation under Sherman Antitrust Act. Let's use the carrot, not the stick.