[A2k] IP Justice Comments to the U.S.T.R. on the proposed Anti-Counterfeiting Trade Ageement (ACTA)

[Robin Gross]

Available online:
    http://ipjustice.org/wp/2008/03/21/acta-ipj-comments-ustr-2008march/

IP Justice Comments to the U.S.T.R. on the proposed Anti-
Counterfeiting Trade Agreement (ACTA)
21 March 2008

ACTA=92s Misguided Effort to Increase Govt Spying and Ratchet-Up IPR
Enforcement at Public Expense

IP Justice appreciates this opportunity to provide comments to the
Office of the United States Trade Representative on the proposed Anti-
Counterfeiting Trade Agreement (ACTA).  IP Justice is an
international civil liberties organization that promotes balanced
intellectual property laws and Internet policies that encourage
innovation and creativity (http://www.ipjustice.org).

IP Justice firmly believes that ACTA=92s costs to the public far
outweigh any public benefit it might provide.  The financial expense
to tax-payers to fund ACTA would be enormous and steal scarce
resources away from programs that deal with genuine public needs like
providing education and eliminating hunger.  ACTA would burden the
judicial system and divert badly needed law enforcement and customs
resources away from public security and towards private profit.

Unfortunately the zeal to =93beef-up=94 enforcement measures on which
ACTA rides often leads to the violation of privacy rights, bypassing
due process protections, and cutting-off the free flow of
information.  ACTA proposes to set new international norms to lock
countries into pre-determined policy choices when flexibility is needed.

ACTA=92s premise that the government should spy on its citizens and
exchange that data with other governments in order to protect the
intellectual property industry is profoundly misguided.  The number
of reported cases of US governmental spying on American citizens has
never been so high, and ACTA invites a breeding ground for further
abuse and erosion of citizen=92s privacy.

ACTA proposes a policy of =93one-size-fits-all=94 (X-Large) for
intellectual property legal and enforcement measures.  But the very
nature of a digital environment requires that we leave a breathing
space for flexibility in information policymaking that is necessary
for information and creativity to flourish.  The imposition of new
international enforcement measures leaves nations with no opportunity
to set alternative policy priorities, despite the fact that national
priorities regarding information policy vary dramatically from
country to country.  In the past, the US economically flourished
because of its tradition of ensuring a broad range of flexibilities
in intellectual property law and by permitting a robust system of
limitations and exceptions to exclusive rights.  Maintaining
flexibility to respond to technological change is important for
innovation and creativity in developed and developing countries alike.

ACTA=92s focus on infringements in the digital and online environment
is misguided because it duplicates recent efforts of the WIPO
Internet Treaties without learning from the experience. Many
countries are only beginning to implement the WIPO Internet Treaties,
so it would be unwise to add new obligations to countries that have
not had the benefit of the experience of using the WIPO Internet
Treaties to address their concerns.

Rights owners are increasingly taking enforcement measures into their
own hands by applying digital restrictions to information and
entertainment to control its use.  This reality provides even less
justification for an allocation of additional public resources toward
that end.  Particularly since major copyright owners implement
digital restrictions that far exceed the level of control over use
that copyright law grants to rights owners, the public should not
compound that fact with simultaneously devoting even more public
resources to further protect those same narrow private interests.

We are concerned about ACTA=92s negative impact on free market
competition by further shoring-up information monopolies.  ACTA also
threatens to hamper market competition by reinforcing new monopolies
on adjacent products (for example, like the way copyright laws are
increasingly used to enforce business models over printer toner
cartridges rather than protect copyrights).

We note that ACTA=92s proponents employ emotional rhetoric about
dangerous drugs in order to justify expanded protections over
Hollywood music and movies.  Legal and enforcement mechanisms need to
draw an important distinction between the types of infringements that
actually do cause the public serious harm and risk of personal safety
and those infringements that only impact profit margins for major
entertainment companies.  This distinction has been entirely lost in
ACTA discussions.

The lack of transparency and public participation in the process to
negotiate ACTA is deeply troubling to anyone who cares about
democracy and the public interest.  Outside of a scant press release
or two, the USTR has provided the general public with virtually no
public information about the proposed substance of ACTA.  There are
several recent news reports however, of USTR speeches given to
international business groups in order to brief them on ACTA and
listen to the concerns of transnational companies.  No such effort
has been made to brief public interest groups with information on the
developments of ACTA or to receive input from non-industry sectors of
society.

Therefore, we have serious concerns about the inadequacy of public
input, absence of non-industry participation, and lack of
transparency in the negotiation process surrounding ACTA.
Furthermore, the lack of developing county participation in the ACTA
process only underlines the flawed and undemocratic process behind
ACTA.  Given the differing needs of countries in differing stages of
development, ACTA=92s failure to include developing countries in its
early negotiations only emboldens ACTA=92s own illegitimacy as a
proposed legal instrument.  ACTA=92s circumvention of existing
international legal fora such as WIPO or the WTO TRIPS Council where
developing country views must be considered, in order to conclude
this trade pact outside of the restraints of democratic process and
having to include developing country perspectives also points to
ACTA=92s =93anti-public-interest=94 agenda.

We commend the USTRs solicitation of these public comments on ACTA,
but believe the given timeframe in which to submit comments has been
far too short and the notices and other information too difficult to
find for the general public to adequately participate.

Therefore, we respectfully request that the timeframe in which
citizens may submit comments be extended in order to achieve wider
public participation.  We further ask that the USTR organize
discussions with public interest NGOs to better understand non-
industry concerns about ACTA.  And we strongly urge the USTR to
abandon support for ACTA due its undemocratic process and its
misguided purposing of public resources towards private interests.

IP Justice would welcome the opportunity to provide further input
into the ACTA process and remains available for any further questions
or discussion.

Very truly,

Robin Gross
IP Justice Executive Director