Mexican Congress Rejects Anti-Counterfeiting Trade Pact
The Mexican Congress last week approved a resolution rejecting the Anti-Counterfeiting Trade Agreement (ACTA), a multi-country intellectual property trade agreement that has been in negotiations since 2006. The resolution, which specifically asks Mexican President Felipe Calderón not to sign the treaty on Mexico's behalf, reflects the ongoing controversy regarding the agreement's potential impact on intellectual property rights.
Negotiating parties, which include Australia, Canada, the EU, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the US, wish to establish a framework to combat "the proliferation of counterfeit and pirated goods as well as the proliferation services that distribute infringing material." The talks were conducted largely behind closed doors, and a final version of the agreement was released in November 2010 (see Bridges Weekly, 3 November 2010).
On 15 June, Mexican Senator Francisco Javier Castellón Fonseca of the Partido de la Revolución Democrática (PRD) introduced a recommendation urging the government not to sign the agreement. Senator Castellón is the President of the Science and Technology Commission of the Mexican Senate and a member of the Grupo de Trabajo Plural, or Plural Working Group, established to evaluate the ACTA. The recommendation went to a full vote, and was unanimously approved by the Mexican Congress on 22 June.
The recommendation was introduced after several months of consultations by the Plural Working Group with officials, academics, and members of civil society, aimed to understand the benefits and costs of ACTA. The Plural Working Group cited, among other issues, a lack of transparency within ACTA negotiations and a need for more detail about the agreement.
Of particular concern were sections on regulating internet usage and policies allowing the intervention of judicial authorities in cases of usage violation. The Plural Working Group articulated the protests of various civil society members, who argue that ACTA breaches Mexico's privacy laws, and could endanger freedom of access to information and culture.
Mexican legislators have also expressed concerns that ACTA is unconstitutional. During a consultation of the Plural Working Group, Senator María Beatriz Zavala Peniche, of the Partido Acción Nacional (PAN, or National Action Party) argued that "as a senator, I couldn't possibly agree to any international agreement that violates individual rights, that goes against the Constitution, or that is incompatible with Mexican legal rights."
Senator Carlos Sotelo, of the Partido Revolucionario Institucional (PRI, or Institutional Revolutionary Party) argued that Mexico needs to make its own effort to develop balanced legislation on intellectual property and the right to universal broadband access before signing ACTA. Sotelo has also criticised the fact that the Senate had not been adequately briefed on the status of the negotiations.
León Felipe Sánchez, an intellectual property lawyer based at Mexico's Universidad Nacional Autónoma, or National Autonomous University, told Bridges that "Congress' decision to ask the President not to sign ACTA on Mexico's behalf has not been made hastily. It is the product of various rounds of talks with the actors involved and that could be affected and/or benefit from subscribing to the treaty."
Alejandro Pisanty, President of the Internet Society of Mexico, argues that an international agreement for the protection of industrial and intellectual property cannot be signed or ratified without reviewing the digital component. He noted that ACTA includes "ambiguities, indefinites, and contradictions that are very difficult to deal with regard to the digital realm."
This is not the first time that concerns have emerged over ACTA's implications for digital communication. In 2010, the Federal Telecommunications Commission (COFOTEL), Mexico's telecom regulator, sent out a press release citing various potential problems with the conditions of ACTA, which the organisation argued were too restrictive. COFOTEL emphasised that internet service providers should not become the authorities who monitor the activities of Internet users, and that ACTA could limit broadband penetration in Mexico, making it difficult for the federal government to succeed in reducing the "digital divide." Mexico's National Development Plan discusses the importance of broadband penetration as a strategy for the country's economic development.
Slim likelihood that President will ignore Senate
The "anti-ACTA" recommendation is not binding on President Felipe Calderón, as it only "respectfully urges the Federal Executive Power...within the framework of its powers, to instruct the ministries and agencies involved in negotiating the Anti-Counterfeiting Trade Agreement (ACTA) not to sign the Treaty." Although Calderón could still sign ACTA, reports suggest that this is highly unlikely. Presidential elections are taking place next year, and by supporting the agreement, Calderón might face difficulties within his own party (PAN). Should Calderón succumb to these pressures, Mexico will likely stay out of ACTA until next year's election.
In his remarks to Bridges on the subject, Sánchez suggested that "subscribing to an international agreement that the Senate has told the President not to sign would basically leave the treaty dead on arrival in Mexico."
There is no guarantee, however, that the agreement will not be signed by the next administration. Although ACTA is widely panned in Mexico, there are several vocal parties in support of the agreement. Rodrigo Roque Díaz, Director of the Mexican Institute of Industrial Property, was reported saying that he it was "unknown" to him why the Congress would order the President not to sign a treaty that aims to "generate the best practices against illicit copies of artistic intellectual works, and the violation of property rights."
Federico de la Garza, Director of the Motion Picture Association (MPA) echoed that sentiment, noting that the Senate's decision is only a resolution and not a law, and that "...Mexico will not allow a treaty of this calibre to vanish."
Mexico's resistance to ACTA could set a precedent for other negotiating governments, and members of civil society are calling for other countries to take a similar stance. ACTA has been criticised for being incompatible with other international agreements, and for potentially running against individual rights and placing limitations on creativity, knowledge-sharing, and innovation.
A May 2011 United Nations Special Rapporteur report on freedom and expression addressed ACTA, noting that, "while the provision to disconnect individuals from Internet access for violating the treaty have been removed from the final text of December 2010, the Special Rapporteur remains watchful about the treaty's eventual implications for intermediary liability and the right to freedom of expression."
ICTSD reporting; "Senadores y expertos consideran innecesario firmar tratado ACTA," B:SECURE MAGAZINE, 18 February 2011; "Cofetel rechaza tratado ACTA porque podría amliar brecha digital," B:SECURE MAGAZINE, 24 November 2010; "The Mexican vote against ACTA: A pretty big deal," BLAYNE HAGGART'S ORANGESPACE, 23 June 2011; "Did Mexico pull out of ACTA for real? For now, yes, but maybe not for long," TECHDIRT, 29 June 2011.