Archive for April 21st, 2010

As the ACTA negotiating countries promised, a draft consolidated text was released earlier today. Unlike the earlier leaked version which provided specific attribution to country positions, this official version has removed references to those positions, so the text does not state who supports which version of the text. Those interested in deciphering that bigger picture, should look at the official release alongside the leaked version (text version here).

While there is still considerable disagreement – lots of square brackets indicating areas where the text has not achieved consensus – the countries did make some progress last week in New Zealand. There will be another round of negotiations in June in Switzerland, followed by at least two more rounds in the fall. The target remains the end of 2010 to conclude a deal, but there will still need to be considerable compromise. Moreover, the continuing position of the U.S. and E.U. that they will not change their domestic laws will have to change since there are too many inconsistencies for both to be right.

Today's release marks an important development that highlights the value of public pressure. As politicians and the public demanded greater transparency, the negotiating countries presumably concluded that the issue was becoming a major impediment to concluding an agreement and decided to make it available (the fact that it was already leaked and that the countries standing in the way of transparency were publicly identified were undoubtedly additional considerations). Moreover, the benefits of public pressure can also be seen in parts of the text. The near-consensus on a de minimis provision – which was not even included in the initial proposals – reflects a desire to address concerns around personal searches at the border. Similarly, the removal of the U.S. footnote on graduated response may also reflect public concern and pressure.

Public pressure has helped make ACTA marginally better, but the release of text confirms many of the fears regarding the substance of the treaty. As discussed below, it would require dramatic changes to many domestic laws with new requirements on statutory damages, injunctions, anti-circumvention rules, and ISP safe harbours. Many of these provisions are substantive copyright rules, not limited to counterfeiting (as the title of the treaty suggests) nor enforcement (as sometimes claimed).

Moreover, the institutional issues around ACTA remain a huge concern. This is explicitly an attempt to circumvent WIPO and the more open, transparent, and inclusive international process. The implications are very significant for all countries as this undermines the ability for many countries to have their concerns heard. Instead, many will face demands to comply with a treaty from which they were completely excluded during the negotiation process.

Full analysis of the updated consolidated text will take some time, but a few quick comments on key issues in the text.