Intellectual Property Law

ACTA: International Harmonization at What Cost?

By gwen

The next round of negotiations on ACTA start today in Guadalajara, Mexico. This week?s negotiations will apparently focus on civil enforcement, border measures, and enforcement procedures in the digital environment, and briefly, transparency.

One of the main goals of ACTA is creating new harmonized international IP enforcement standards above those in the 1994 TRIPs agreement. Thirty-seven countries with 37 different national laws are negotiating ACTA, so reaching agreement on new substantive IP enforcement standards will inevitably involve compromises. Some countries will be required to change their national law to bring them closer to other countries' approaches to IP regulation. Since two of the major powers negotiating ACTA are the US and the European Union (and its 27 Member States), there is much scope for different approaches and disagreements to arise. This is particularly true for Internet intermediary liability — where laws in the US and the various EU Member States take quite different approaches.

Which country prevails in this battle of legal wills will have tremendous consequences for citizens' access to knowledge and the future of the Internet as a powerful tool for communication, cross-border collaboration and a platform for innovation.

The EU has indicated that it is unwilling to agree to anything that requires changes to European Community law. EU negotiators would probably not be able to do so under their (still secret) negotiation mandate. On January 14, EU Commissioner-delegate for the Digital Agenda, Neelie Kroes stated that "The objective of ACTA negotiations is to provide the same safeguards as the EU did in the telecoms package... So we stick to our line and that's it."

For its part, the USTR has repeatedly said that ACTA will only "color within the lines of existing US law". Indeed, this is the justification for negotiating ACTA as a sole Executive Agreement, therefore bypassing the checks and balances of the usual Congressional oversight process applied to other recent free trade agreements, such as the US-South Korea FTA.

Given this, it is interesting to reflect on the leaked European Commission?s analysis of the US's Internet Chapter. Although draft text of the Internet chapter has not yet surfaced, the EU analysis discloses what the chapter covers: increased Internet intermediary liability, three strikes Internet disconnection obligations for ISPs, and civil and criminal technological protection measure laws modeled on the US DMCA.

(More after the Jump ..)

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Full post as published by Electronic Freedom Foundation - Deep Links on January 26, 2010 (boomark / email).