TWN Info Service on WTO and Trade Issues  (Nov10/04)
9 November 2010
Third World Network

Leading law academics call for halt to ACTA
Published in SUNS #7033 dated 4 November 2010

Geneva, 3 Nov (Kanaga Raja) -- Citing some grave concerns over the proposed Anti-Counterfeiting Trade Agreement (ACTA), nearly eighty law professors have amongst others called on US President Barack Obama to direct US Trade Representative Ron Kirk to halt public endorsement of the agreement.

In a letter to the president dated 28 October, the law academics, from predominantly American universities, said that the draft ACTA should be subjected to a meaningful participation process that can influence the shape of the agreement going forward.

Among the complaints about ACTA voiced by the law professors is one that the agreement is being negotiated behind a shroud of secrecy with little opportunity for public input.

The law professors that included Professor Lawrence Lessig of Harvard Law School and Sean Flynn of American University Washington College of Law, said that this degree of secrecy is "unacceptable, unwise, and directly undercuts" the president's oft-repeated promises of openness and transparency.

They were also of the view that ACTA would usurp congressional authority over intellectual property policy in a number of ways, and appears to be unconstitutional. While the treaty is named the "Anti-Counterfeiting Trade Agreement", it has little to do with counterfeiting or controlling the international trade in counterfeit goods, they argued.

ACTA is currently being negotiated by Australia, Canada, the European Union and its 27 member states, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States.

The latest version of the draft agreement was released on 2 October.

The draft ACTA also came in for sharp criticism at the WTO's TRIPS Council last week. Those opposed to the agreement argued amongst others that the draft ACTA threatens the negotiated balance that was achieved in the TRIPS agreement, and that it could also put pressure on developing countries to adopt TRIPS-plus standards.

According to media reports, the US patent office is conducting an analysis as to whether the draft ACTA is in conflict with US patent and healthcare laws. US patent officials have been cited in the media reports for the view that the draft ACTA may be in conflict with the recently enacted healthcare bill as well as patent and other laws. (See SUNS #7030 dated 1 November 2010.)

In their letter to President Obama, the law professors said that they were writing to express their grave concern that his administration is negotiating a far-reaching international intellectual property agreement behind a "shroud of secrecy, with little opportunity for public input, and with active participation by special interests who stand to gain from restrictive new international rules that may harm the public interest."

"Your Administration promised to change the way Washington works. You promised to bring increased truthfulness and transparency to our public policy and law, including the Freedom of Information Act. You promised that wherever possible, important policy decisions would be made in public view, and not as the result of secret special interest deals hidden from the American people.

"Your Administration's negotiation of ACTA has been conducted in stark contrast to every one of these promises," said the letter.

The law professors focussed on the three principal ways in which they said the Obama Administration's negotiation of ACTA undercuts the credibility of his previous promises.

First, they said, ACTA's negotiation has been conducted behind closed doors, subject to intense but needless secrecy, with the public shut out and a small group of special interests very much involved.

The United States Trade Representative (USTR) has been involved in negotiations relating to ACTA for several years, and there have been drafts of portions of the agreement circulating among the negotiators since the start of negotiations.

Despite that, the professors noted, the first official release of a draft text took place only in April 2010. And following that release, the USTR has not held a single public on-the-record meeting to invite comments on the text.

Worse, they added, at every subsequent meeting of the negotiating parties, the US has blocked the public release of updated text, and it has often acted alone in banning the distribution of the revised text, contrary to the strong majority view of other negotiating partners to promote public inspection and comment.

"Because the negotiations have operated on a consensus basis, the US vote against transparency has been dispositive," said the letter, stressing that this degree of secrecy is "unacceptable, unwise, and directly undercuts your [President Obama's] oft-repeated promises of openness and transparency."

"Rather than seeking meaningful public input from the outset, your Administration has allowed the bulk of the public debate to be based upon, at best, hearsay and speculation," the professors told President Obama.

Noting that ACTA is not (the claims of the USTR notwithstanding) related in any way to any standard definition of "national security" or any other interest of the US similarly pressing or sensitive, the letter said: "The Administration's determination to hide ACTA from the public creates the impression that ACTA is precisely the kind of backroom special interest deal - undertaken in this case on behalf of a narrow group of US content producers, and without meaningful input from the American public - that you have so often publicly opposed."

Second, said the letter, the Administration has stated that ACTA will be negotiated and implemented not as a treaty, but as a sole executive agreement. "We believe that this course may be unlawful, and it is certainly unwise".

Now that a near-final version of the ACTA text has been released, it is clear that ACTA would usurp congressional authority over intellectual property policy in a number of ways, said the law professors, noting that some of ACTA's provisions fail to explicitly incorporate current congressional policy, particularly in the areas of damages and injunctions.

Other sections lock in substantive law that may not be well-adapted to the present context, much less the future.

And in other areas, the agreement may complicate legislative efforts to solve widely recognized policy dilemmas, including in the area of orphan works, patent reform, secondary copyright liability and the creation of incentives for innovation in areas where the patent system may not be adequate.

"The agreement is also likely to affect courts' interpretation of US law".

The use of a sole executive agreement for ACTA appears unconstitutional, the letter stressed, adding that the President may only make sole executive agreements that are within his independent constitutional authority, and that he has no independent constitutional authority over intellectual property or communications policy, the core subjects of ACTA.

"To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property. ACTA should not be pursued further without congressional oversight and a meaningful opportunity for public debate."

Pointing out that the USTR has insisted that ACTA's provisions are merely procedural and only about enforcing existing rights, the law academics said that "These assertions are simply false."

Noting that nearly 100 international intellectual property experts from six continents had gathered in Washington, DC in June 2010 to analyse the potential public interest impacts of the officially released text, the letter by the law professors to Obama said that those experts - joined by over 650 other experts and organizations - found that "the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators."

According to the law professors' letter, the expert statement notes that:

-- Negotiators claim ACTA will not interfere with citizens' fundamental rights and liberties: it will;

-- They claim ACTA is consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS): it is not;

-- They claim ACTA will not increase border searches or interfere with cross-border transit of legitimate generic medicines: it will; and

-- They claim that ACTA does not require "graduated response" disconnections of people from the internet: however, the agreement encourages such policies.

Academics and other neutral intellectual property experts have not had time to sufficiently analyse the current text and are unlikely to do so as long as there is no open public forum to submit such analysis in a meaningful process, said the letter.

"Rather than create such a forum, the USTR has released text accompanied by the announcement that the negotiations are finished and the time for public comment, which was never granted in the first instance, is over. This is not meaningful, real-time transparency, and it is certainly not the kind of accountability that we were expecting from your Administration."

The law professors said that they know enough to know that ACTA's provisions are of significant interest to the general public, because they touch upon a wide range of public interests and are likely to alter the substantive law governing US citizens.

"It is clear that before ACTA negotiations proceed further, Congress must be involved."

Third, and finally, said the law professors, "we are concerned that the purpose that animates ACTA is being deliberately misrepresented to the American people."

The treaty is named the "Anti-Counterfeiting Trade Agreement", but it has little to do with counterfeiting or controlling the international trade in counterfeit goods, they said further.

Rather, they added, this agreement would enact much more encompassing changes in the international rules governing trade in a wide variety of knowledge goods - whether they are counterfeit or not - and would establish new intellectual property rules and norms without systematic inquiry into effects of such development on economic and technical innovation in the US or abroad.

"These norms will affect virtually every American and should be the subject of wide public debate."

"Our conclusion is simple: Any agreement of this scope and consequence must be based on a broad and meaningful consultative process, in public, on the record and with open on-going access to proposed negotiating text and must reflect a full range of public interest concerns. For the reasons detailed above, the ACTA negotiations fail to meet these standards."

Accordingly, the law professors called on President Obama to direct the USTR to halt its public endorsement of ACTA and subject the text to a meaningful participation process that can influence the shape of the agreement going forward.

Specifically, they called on President Obama to direct the USTR to:

-- Signal to other negotiators that the US will not sign ACTA before the conclusion of a meaningful public participation process and another round of official negotiations where public participation is encouraged;

-- Hold a meaningful open, on-the-record public hearing on the draft text, the results of which will be used to determine what proposed changes to the agreement the administration will propose;

-- Renounce its position that the agreement is a "sole executive agreement" that can tie Congressional authority to amend intellectual property laws without congressional approval and instead pledge to seek congressional approval of the final text;

-- Consider reforms to the USTR's industry trade advisory committee (ITAC) process that would allow for a wide range of official advisors; and

-- Propose new language for the creation of the ACTA Committee that would require open, transparent and inclusive participation that takes into account the viewpoints of other stakeholders, including inter-governmental organizations (IGOs) and non-governmental organizations, in line with the principles of the World Intellectual Property Organization's development agenda.

(The letter by the law professors to President Obama, which includes the full list of signatories, can be found at +