U.S. Trade Rep Stands Firm Amid Barrage of Criticism Over Global Intellectual Property Negotiations

Copyright, Intellectual Property, International, Patents June 28th, 2010

, Contributing Editor

SAN FRANCISCO, June 28, 2010 – The office of the United States Trade Representative is standing firm as its negotiators head into a set of week-long negotiations over the controversial Anti-Counterfeiting Trade Agreement in Lucerne, Switzerland.

When asked whether the USTR had seen a statement issued early last week by a group of about 90 law professors, non-profit groups and lawyers representing technology interests against the proposed April draft of the agreement and had any comment, a spokeswoman responded: “Yes, we are aware of it. We disagree with its assertions and we direct you to our statements on www.ustr.gov/acta.”

ACTA could export US law to other countries when it might not be appropriate, says Sean Flynn, as associate director and law professor at the Washington College of Law at American University.

The proposed agreement between the United States, Europe, Japan, and South Korea, among other countries, would allow the governments of participating countries to take new actions to crack down on intellectual property violations.

Technology and telecom companies are worried about being forced to police their networks in draconian new ways or face massive copyright infringement liabilities and criminal penalties. Public interest groups are worried about the impact of the agreement on the flow of generic pharmaceutical drugs.

Staffers at both Google and the Consumer Electronics Association have expressed concern this year about the proposed agreement and the impact it could have on tech companies.

“Even if ACTA turns out to be consistent with U.S. law, it’s increasing penalties overseas without any concurrent increase in the limitations and exceptions that permit legal activity here in the U.S.,” said Matt Shruers, the Computer and Communications Industry Association’s senior counsel for litigation and legislative affairs in an April interview with Broadbandbreakfast.com, and one of the signatories on last week’s statement against the April draft of ACTA. “Imagine if [companies that engage in] innovative activities that we see on the internet — like search — being subjected to statutory damages, but not being able to avail themselves of the defense that we have in the United States of fair use, it dramatically increases the prospect of liability.”

CCIA’s members include Yahoo, Google and eBay.

The negotiation process has been controversial on many counts: It sidesteps the regular institutions for international trade and intellectual property agreements, and public interest advocates and some technology company representatives have complained that the negotiations are happening without their input — even though the results may have a huge impact on their companies and have public interest implications.

The issue of process and getting an agreement hammered out in a timely fashion is a complex one. The technology industry is affected by piracy and counterfeiting –  some powerful software companies want a more effective crack down on piracy. The Business Software Alliance, for example, has endorsed the Obama’s efforts to get a deal done. And counterfeit Cisco routers have in the past compromised the US military. But the usual fora for negotiating global agreements are increasingly being seen by negotiators as ineffective, hence the move toward ACTA.

Trade negotiators from around the world are scheduled to discuss ways to better enforce intellectual property rights both online and at their borders between Monday and Thursday this week.

The coalition of  law professors, non-profit groups and lawyers representing tech firms called ACTA “the predictably deficient product of a deeply flawed process.”

“What started as a relatively simple proposal to coordinate customs enforcement has transformed into a sweeping complex new international intellectual property and internet regulation with grave consequences for the global economy and governments’ ability to protect the public interest.”

“A lot of the provisions of the law that they’re claiming are not being changed may emerge in court interpretations of the agreement,” said  Sean Flynn, a law professor at American University. “It’s exporting a lot of US standards in US law to a lot of other countries that may not be best practice.”

The USTR has tried to assuage the concerns of the various groups by specifically addressing their concerns through a FAQ page, but the group that signed the Communique last week remained unconvinced, writing:

We find that the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators.

  • Negotiators claim ACTA will not interfere with citizens’ fundamental rights and liberties; it will.
  • They claim ACTA is consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS); it is not.
  • They claim ACTA will not increase border searches or interfere with cross-border transit of legitimate generic medicines; it will.
  • And they claim that ACTA does not require “graduated response” disconnections of people from the internet; however, the agreement strongly encourages such policies.

Nevertheless, the Obama Administration remains firmly committed to the agreement, highlighting its participation in ACTA last week in its “Joint Strategic Plan on Intellectual Property Enforcement.”

Editor’s Note: Don’t miss the Intellectual Property Breakfast Club Event on Tuesday, July 13, “The Anti-Counterfeiting Trade Agreement Treaty,” for FREE at Clyde’s of Gallery Place in Washington from 8 a.m. to 10 a.m. Register at http://ipbreakfast.eventbrite.com.

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