[A2k] Missing Safeguards in ACTA present risks to consumers in the US, KEI/PK letter to Congress

[Manon Ress]

http://www.keionline.org/node/684


November 9, 2009

Senator Patrick Leahy, Chairman
Senator Jeff Sessions, Ranking Member
Senate Judiciary Committee

Senator Max Baucus, Chairman
Senator Chuck Grassley, Ranking Member
Senate Finance Committee

Representative John Conyers, Chairman
Representative Lamar Smith, Ranking Member
House Committee on the Judiciary

Representative Henry Waxman, Chairman,
Representative Joe Barton, Ranking Member
House Committee on Energy and Commerce

Representative Charles Rangel, Chairman
Representative Dave Camp, Ranking Member
House Committee on Ways and Means

Re: Missing Safeguards in ACTA present risks to consumers in the
United States

Last week, the United States met behind closed doors with dozens of
other countries in Seoul, South Korea to consider a global agreement
on the enforcement of intellectual property rights. This agreement,
though named the Anti-Counterfeiting Trade Agreement (ACTA),
implicates changes to international intellectual property norms far
broader than its name suggests. We write today to register our grave
concerns with the provisions purportedly contained within ACTA, and
their effects upon the public.

We have often expressed our concerns about the need for transparency
of this negotiation, and have joined others in asking the Congress and
the Administration to open this negotiation to public oversight and
input, as is customary in other areas of global norm setting for
intellectual property rules. Only through such openness can we ensure
the legitimacy of any policy norms resulting from this process.

However, we also maintain serious reservations about ACTA's contents
and substance, based upon what is known about the negotiation from
public press reports and credible leaked documents. While we would
vastly prefer to rely upon official sources and documents in raising
our concerns, the secretive nature of the ACTA process leaves us with
no alternative in discussing these pressing matters. We urge you to
insist that the Administration to provide the public with the actual
text of the ACTA proposals so that all stakeholders, including the
public, can have productive and informed discussions on substantive
issues.

Given what has been disclosed so far, the U.S. and other ACTA parties
are seeking to create a set of obligations for countries that expand
upon certain elements of the Word Trade Organization's Trade Related
Aspects of Intellectual Property (TRIPS) agreement. Rather than taking
as their starting point the entire TRIPS agreement, it would seem that
the ACTA negotiators have identified certain parts of the TRIPS
agreement most favorable to particular groups of intellectual property
holders, including certain publishers, media conglomerates, and
pharmaceutical companies. Left out of the ACTA text are the elements
most favorable to consumers, including those intended to curb
anticompetitive practices, and to protect innovation.

The result is an agreement that is therefore unbalanced. ACTA would
appear to be an expanded version of the TRIPS enforcement sections,
but without the balance and safeguards that have given TRIPS such
legitimacy.

There is no evidence that ACTA contains any of the safeguards which
are embodied in Articles 1, 6, 7, 8, 40 and 44.2 of TRIPS. These
provisions provide a wide range of necessary protections, including:

     * Article 1 of the TRIPS provides that countries are "free to
determine the appropriate method of implementing the provisions of
this Agreement within their own legal system and practice."
     * Article 6 of the TRIPS is a guarantee that the agreement will
not limit the scope of the exhaustion of intellectual property rights,
so that WTO members have flexibility when implementing policies
concerning parallel trade or the first sale doctrine.
     * Article 7 of the TRIPS provides that "[t]he protection and
enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and
dissemination of technology, to the mutual advantage of producers and
users of technological knowledge and in a manner conducive to social
and economic welfare, and to a balance of rights and obligations."
     * Article 8 of the TRIPS is a guarantee that WTO members may
"adopt measures necessary to protect public health and nutrition, and
to promote the public interest in sectors of vital importance" and
take appropriate measures to "prevent the abuse of intellectual
property rights by right holders."
     * Article 40 of the TRIPS concerns the ability of countries to
control anti-competitive practices, and curb abuses of intellectual
property rights.
     * Article 44.2. of the TRIPS allows governments to eliminate the
possibility of injunctions to enforce intellectual property rights, in
certain cases where governments provide for remuneration to right
owners. This flexibility is part of several sections of U.S. law, all
of which are important to consumers and are at risk if the ACTA
discards the flexibility now found in Article 44.2 of the TRIPS.1

These different provisions, which are evidently being discarded or
ignored, are collectively essential to protecting the public interest.

Meanwhile, other provisions of ACTA have apparently refashioned a
number of TRIPS provisions in more restrictive ways. By specifying
particular remedies and means of enforcement, ACTA restrains the
application of Articles 41, 44.1, 45, 46, 47, 50, most of Section 4,
and Article 61.

Current revelations about ACTA suggest that its provisions are
overwhelmingly selected to advantage a narrow set of interests,
failing to take into account its effects on the overall economy, the
civil and economic rights of the public, and other elements of the
public good.

In this regard, and for constructive comments on how enforcement
policy should be designed, we call your attention to the
recommendations of the Trans Atlantic Consumer Dialogue (TACD)
Resolution on the enforcement of copyright, trademarks, patents and
other intellectual property rights (IP 09-09), adopted June 2009.

The ACTA negotiations, while operating in extraordinary secrecy, are
leading to a result that is anti-consumer and anti-innovation. The
public should be allowed to raise its concerns in an open and
democratic environment where everyone will be able to observe and
influence these alterations to our intellectual property policy. We
urge you to end this exercise in unbalanced, opaque policymaking. The
ACTA negotiations should be made open, or they should be stopped.

Respectfully Submitted

James Love, Knowledge Ecology International
Gigi Sohn, Public Knowledge

***************************************************************************
Manon Ress
manon.ress@keionline.org
Knowledge Ecology International
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.:  +1.202.332.2670, Fax: +1.202.332.2673