[Ip-health] Counterfeit Democracy

[Riaz K Tayob]

Counterfeit Democracy

September 16, 2008 By Robert Weissman


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A new draft global trade treaty may interfere with fair use of
copyrighted materials, require Internet Service Providers (ISPs) to
monitor all consumers' Internet communications, and undermine access to
low-cost generic medicines.

Does the proposed Anti-Counterfeiting Trade Agreement (ACTA) contain
provisions that would actually do these things?

There's no way to know, because the treaty text remains secret.

More than 100 public interest organizations from around the world today
called on officials from the countries negotiating ACTA -- the United
States, the European Union, Japan, South Korea, Canada, Mexico,
Switzerland Australia and New Zealand -- to publish immediately the
draft text of the agreement.

U.S. trade negotiators have justified the cloak-and-dagger approach to
ACTA on the grounds that all trade treaties are negotiated in secret.
But this is not so. Negotiating texts are commonly made public in
multilateral trade negotiations, including in the current Doha Round
negotiations at the World Trade Organization and the now discarded talks
for a Free Trade Area of the Americas, and in treaty negotiations at
organizations like the World Health Organization and the World
Intellectual Property Organization.

In any case, what possible rationale is there to keep a treaty that
claims to be about unauthorized copying secret? Are the negotiators
worried that counterfeiters might somehow influence the negotiations?

No, the reason is to keep the public in the dark.

This matters, because intentionally or not, a treaty to prevent
unauthorized copying may easily go too far, and undermine important
consumer interests. And it matters because, not surprisingly, there's
more to worry about than errors by well-meaning technocrats.

The recording industry, Hollywood, the software moguls, and Big Pharma
are all aiming to use tough talk about "counterfeiters" and "piracy" to
push governments to do much more than crack down on trademark and
copyright infringers who aim to deceive consumers. They want government
assistance in enforcement of trademarks, copyright and patents, even
though these are private rights. And they want to impose liability on
third parties that might possibly facilitate unauthorized uses, even if
these third parties are unaware of the activities of alleged infringers.
This is an agenda being pursued in multiple venues, of which ACTA is
among the most important.

One reason that ACTA is so important is that it almost certainly is
intended to apply to the entire world. Borrowing from the strategy of
the failed Multilateral Agreement on Investment, the rich countries are
working out a deal among themselves. Then the rest of the world's
nations will be told that they can join the treaty on a
take-it-or-leave-it basis -- with major pressure imposed to get
developing countries to take it.

News reports and published material from various business associations
certainly give reason to fear what may be in the treaty. The public
interest sign-on letter expresses concern that ACTA may:

* Require ISPs to monitor all consumers' Internet communications,
terminate their customers' Internet connections based on copyright
holders' repeat allegations of copyright infringement, and divulge the
identity of alleged copyright infringers possibly without judicial
process, threatening Internet users' due process and privacy rights; and
potentially make ISPs liable for their end users' alleged infringing
activity;

* Interfere with fair use of copyrighted materials;

* Criminalize peer-to-peer file sharing;

* Interfere with legitimate parallel trade in goods, including the
resale of brand-name pharmaceutical products (known as drug
"reimportation" in the United States);

* Impose liability on manufacturers of pharmaceutical raw materials, if
those raw materials are used to make counterfeits. Such a liability
system would likely make raw materials manufacturers reluctant to sell
to legal generic drug makers, and thereby significantly damage the
functioning of the legal generic pharmaceutical industry;

* Improperly criminalize acts not done for commercial purpose and with
no public health consequences; and

* Improperly divert public resources into enforcement of private rights.

Presented with these concerns, the U.S. Trade Representative's officials
say there is no reason to be worried. ACTA won't require more than
existing U.S. free trade agreements, the officials say.

This assurance is, first, not exactly a comfort.

Meanwhile, business groups are explicit that believe ACTA should do far
more than existing U.S. free trade agreements. Are they having their
way? There's no way to know as long as the draft treaty remains a secret.


Robert Weissman is editor of the Washington, D.C.-based Multinational
Monitor, and director of Essential Action. Essential Action helped
organize the ACTA sign-on letter discussed in this article.

http://www.zmag.org/znet/viewArticle/18831