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Assessing ACTA: My Appearance Before the European Parliament INTA
Workshop on ACTA	  HYPERLINK
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Thursday March 01, 2012

The Anti-Counterfeiting Trade Agreement has mushroomed into a massive
political issue in Europe in recent weeks with protests in hundreds of
cities across the continent. Much of the focus has been on whether the
European Parliament will give its approval to the agreement. The focal
point of attention within the EP has been on the INTA committee, which
holds a   HYPERLINK
"http://www.europarl.europa.eu/document/activities/cont/201202/20120220A
TT38551/20120220ATT38551EN.pdf"  public workshop  on the issue today.
Interest in the workshop has been incredible - there are apparently 800
registrants with thousands more expected to watch the   HYPERLINK
"http://events.europarl.europa.eu/"  live stream .

Several months ago, I was approached to write one of several reports for
the ACTA workshop. The report will be made public in the next couple of
weeks, but I'll be on the workshop's first panel (along with Trade
Commissioner Karel De Gucht and Professor Christophe Geiger) to discuss
my report and the agreement. The panel starts at 9:15 ET. I only have
ten minutes for opening remarks, so the comments target a few of the
findings from the report. A transcript of my planned remarks is posted
with EP permission below:

Appearance before European Parliament INTA Workshop on ACTA

March 1, 2012

Good afternoon. My name is Michael Geist. I am a law professor at the
University of Ottawa, Faculty of Law, where I hold the Canada Research
Chair in Internet and E-commerce Law. 

I’m grateful for the opportunity to submit a report assessing ACTA to
you and for the chance to comment at today’s workshop. My comments
have been posted at michaelgeist.ca and I understand the report will be
published shortly. 

Let me start with the conclusion and then take you through my analysis.
My conclusion:

“This report concludes that ACTA’s harm greatly exceeds its
potential benefits. Given ACTA’s corrosive effect on transparency in
international negotiations, the damage to international intellectual
property institutions, the exclusion of the majority of the developing
world from the ambit of the agreement, the potentially dangerous
substantive provisions, and the uncertain benefits in countering
counterfeiting, there are ample reasons for the public and politicians
to reject the agreement in its current form.  In doing so, governments
would help restore confidence in the global intellectual property system
and open the door to a new round of negotiations premised on
transparency, inclusion, and evidence-based policy-making.”

Allow me to explain. The report is divided into three parts.

Part one analyzes the process-related problems including the lack of
transparency, the exclusion of many developing countries from the
negotiation process, and the harm caused by ACTA to the effectiveness of
multilateral organizations such as the WTO and WIPO.  

Part two highlights some of the major substantive concerns with ACTA. I
identify four broad areas of concern: the expansion of intellectual
property law, the likelihood that permissive provisions will gradually
be interpreted as mandatory, the renegotiation of international
intellectual property rights agreements, and the absence of balancing
provisions and procedural safeguards.

Part three examines the likely effectiveness of ACTA in its current
form. 

I should note that while compatibility with fundamental rights and
freedoms is obviously a pre-requisite for any agreement, it is not a
sufficient criteria for approval. There is a need to examine process,
substance, and effectiveness.

I would like to quickly expand on each issue.

1.    Process

Transparency

As you will be well aware, ACTA’s lack of transparency was a
consistent source of concern throughout the negotiation process. It is
important to emphasize that ACTA’s opaque approach was not “an
accepted practice”, but was rather out-of-step with many other global
norm-setting exercises. The WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD,
OECD, Hague Conference on Private International Law, and an assortment
of other conventions were all far more open than ACTA. 

The damage created by the lack of transparency extends beyond public
distrust of ACTA. The failure to include experts throughout the
negotiation process has caused significant damage to the substance of
the agreement with numerous legal concerns as a result. For example, in
May 2008, media around the world reported that the agreement – which
was at the very early stages of negotiation – could lead to border
guard searches of the contents of iPods and other personal devices. As
the furor grew, ACTA participants countered the criticism by including a
de minimis provision (now Article 14) to exempt small consignments and
personal luggage. A similar situation arose in the context of three
strikes rules.

While the public concern over these provisions appears to have resulted
in changes to the ACTA text, the lack of transparency associated the
negotiations meant that these cases constituted the rare instance of
public feedback having an impact on the final text. Had the negotiations
followed more conventional global norms, it is much more likely that the
final text would better account for the remaining substantive concerns.

Harm to International Organizations

All countries and stakeholders benefit from a well-functioning
international intellectual property governance model led by WIPO and the
WTO. Ratification of ACTA will undermine the authority of those
institutions, causing immeasurable harm to the development of global IP
norms. ACTA countries avoided WIPO due to gridlock concerns, but
ratifying ACTA would perversely increase the likelihood of gridlock. For
those countries participating in ACTA, the successful completion of the
plurilateral model will only increase the incentives to by-pass WIPO as
a forum for challenging, global issues. For those countries outside of
ACTA, the relevance of WIPO will gradually diminish, as achieving
consensus on their concerns may prove increasingly difficult. 

Harm to the Developing World

The decision to exclude the developing world will cause enormous harm.
In the short term, developing countries may find that progress on WIPO
Development Agenda issues stall as ACTA partners focus on ratifying
their treaty and currying support for additional signatories. In the
longer term, developing countries will face increasing pressure to
implement an agreement on which they had no input.

Substance

The Expansion of Intellectual Property Law

ACTA raises several concerns with respect to the expansion of
international intellectual property laws. The emphasis on secondary
liability, which potentially holds third parties liable for the
infringing actions of others, represents a significant shift in
international intellectual property law. While many countries have
codified secondary liability principles within their domestic laws,
there are relatively few provisions aimed at secondary liability at
international law. Within ACTA, Articles 8 and 12 apply in the civil
enforcement context, Articles 23 and 24 add “aiding and abetting” to
criminal offences, and Article 27 targets third parties in the online
environment. 

There is also expansion of criminal provisions and border measures.

Mandatory vs. Permissive Provisions

In an attempt to resolve ongoing conflicts over several substantive
areas, the ACTA negotiators agreed to make many provisions permissive
rather than mandatory. Supporters frequently point to the non-mandatory
nature of several contentious provisions as evidence that there is
little reason for concern with the substantive elements of ACTA. The
experience with other treaties indicates that flexible, permissive
language is gradually transformed into mandatory, best-practice
language.

ACTA has permissive language – often as “may” in provisions – at
Article 9 on Damages, Article 10 on Other Remedies, Article 14 on Small
Consignments, Article 16 on Border Measures, Article 22 on Disclosure of
Information, Article 23 on Criminal Offences, and Article 27 on Internet
enforcement. 

The net effect of these provisions is to open the door to statutory
damages, detain in-transit goods, disclose information to rights
holders, create criminal provisions for unauthorized camcording, and
require Internet providers to disclose information about their
subscribers. 

While it is true that ACTA parties will not be required to implement
these provisions in order to be compliant with the agreement, there will
be considerable pressure to reinterpret these provisions as mandatory
rather than permissive. Indeed, it is already happening as the IIPA, a
rights holder lobby group, has recommended placing ACTA countries such
as Greece, Spain, Romania, Latvia, Switzerland, Canada, and Mexico on
the USTR piracy watch list for failing to include optional ACTA
provisions in their domestic laws.

Re-negotiating International Intellectual Property Agreements

The exclusion of WIPO, the WTO and developing countries is particularly
problematic given that ACTA features many provisions that alter
international agreements developed at those organizations. This includes
changes to TRIPS on in-transit goods, damages, and right to information.
For the WIPO Internet treaties, it includes changes to the
anti-circumvention rules.

Absence of Balancing Provisions and Procedural Safeguards

Unlike comparable international intellectual property agreements that
have identified the need for balance and proportionality, ACTA is almost
single-minded in its focus on increasing enforcement powers. ACTA
Article 9 removes safeguards ACTA Article 11 removes the proportionality
provision found in the TRIPS equivalent, and ACTA Article 18 does not
include rules for compensation in cases of wrongful detentions.

Likely Effectiveness of ACTA

A Counterfeiting Agreement Without the Counterfeiters

ACTA supporters may have believed that an agreement could best be
achieved by bringing together a “coalition of the willing”, but by
limiting ACTA to predominantly developed world countries that are not
typically associated with being major sources of counterfeit product,
the agreement is seemingly designed to fail. Addressing ongoing global
counterfeiting concerns necessitates an inclusive dialogue that brings
together developed and developing world countries. 

An Agreement Without Change?

There is ongoing disagreement over ACTA’s impact on domestic law –
some argue that it will not change existing rules, while others believe
that ACTA could require domestic changes – but both interpretations
hurt the case for ratification.  If ACTA does not change domestic
rules, it is far less likely to contribute positively to the battle
against counterfeiting.  If it does require domestic change,
ratification of the agreement raises constitutional and procedural
questions as well as substantive concerns about the likely changes.

Thank you for your attention. I would be pleased to answer your
questions.