Full Draft of ACTA Text Leaked Online

31 March 2010

Secrecy has been one of the biggest problems with the prospective ‘Anti-Counterfeiting Trade Agreement'. The negotiations, involving a small number of mostly industrialised countries, have been secretive even by the standards of international trade negotiations: neither draft agreement texts nor proposals by participating governments have been made public.

With details emerging only through occasional leaks, speculation was rampant as to the content of the potential accord. One of the rumours raised the spectre of border guards searching travellers' iPods and laptops for potentially counterfeit music and movies. Another suggested that internet service providers could be required to cut off users suspected of repeat copyright infringement.

The veil of secrecy was broken last week, when a leaked full draft ACTA text appeared on the website of La Quadrature du Net, a French digital rights group that opposes the prospective treaty. The 56-page document attributes different proposals and views to individual participants, such as the EU, the US, Japan, Canada, New Zealand and Mexico, while also pointing to areas of continuing disagreement.

Actually being able to see what is on the table in the negotiations appears to have eased some fears, but exacerbated others.

For instance, Michael Geist, a law professor at the University of Ottawa who is an expert on internet and e-commerce issues wrote on his blog that the leak shows that there are now no less than four proposals for "de minimis" provisions "to counter fears that the border measures chapter would lead to iPod searching border guards."  Each of the versions would exempt travellers' baggage from the application of the treaty, so long as any copyrighted material was in non-commercial quantities.

On the other hand, concern is growing about proposals to create an ACTA secretariat; a Canadian proposal would even give this secretariat power to resolve disputes among parties to the agreement.  Geist worries that this could marginalise and even replace the multilateral World Intellectual Property Organization. In Geist's view, the successful completion of the ACTA negotiations would undermine the WIPO Development Agenda, an ongoing plan to make the institution more responsive to development concerns, since countries such as the US and the EU would have little incentive to participate.

A separate line of criticism has come from Jack Goldsmith and Lawrence Lessig, professors at Harvard Law school. In an op-ed in The Washington Post, they argue that the leaked draft "belies the US trade representative's assertions that the agreement would not alter US intellectual property law," thus calling into question the constitutionality of the Obama administration's plan to adopt the pact as a "sole executive agreement" that would not require Congressional oversight and approval.

The draft has also exposed some differences among the countries negotiating the ACTA. For example, Japan and New Zealand do not like a proposed "anti-circumvention" provision that would ban tools to break "digital locks" on protected products.

The next ACTA negotiating round is set to take place in New Zealand in April.

The next issue of Bridges will provide further analysis of the leaked ACTA text.

ICTSD reporting.

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