Tacdconference actaslides


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Tacdconference actaslides

  1. 1. ANTI-COUNTERFEITING TRADE AGREEMENT Or How I Learned to Stop Worrying and Love Information CustomsWednesday, December 29, 2010 1
  2. 2. ACTA History Anti-Counterfeiting Congress. Australia. 2004. WCO SECURE US STOP! Initiative (Strategy on Targeting Organised Piracy) (Oct. 2004) EU-US Strategy on the Enforcement of IPR PRO-IP Act. Moving to the Executive Office of President. OMB, DoJ (CCIPS), USPTO, USTR, Dept. of State, USAID, DHS, Dept. of Agriculture, Health & Human Services, & ANY AGENCY DEEMED RELEVANT. What about FTC?Wednesday, December 29, 2010 2
  3. 3. Counterfeiting and Piracy Anti-Counterfeiting Trade (and Piracy) Agreement with a question mark at the end. STOP! Why is this aspect being hidden? Meme-shifting. (in addition to Forum shifting and regime shifting). [Historical coordination between ‘IP’ industries. 70s.] repeat since the pre-history of TRIPs. Susan Sell, Peter Drahos. Rhetoric: “the fight against fakes”; threaten health & safetyWednesday, December 29, 2010 3
  4. 4. Secrecy & Accountability Why is it so secret? This is very Bush Administration. Moving from multi-lateral & bi-lateral to pluri-lateral Lacking accountability. Executive Order. US. Europe. Art. 133 group. Transparency & Openness as Concepts. EFF & Public Knowledge. FOIA case.Wednesday, December 29, 2010 4
  5. 5. What’s in ACTA? First, it was 3 main areas. Now expanded to 4. controversy over Internet issues. International Cooperation: capacity building & technical assistance. enforcement coordination. Enforcement Practices: specialized IP expertise within law enforcement; public/private advisory groups; raising consumer awareness. Legal framework: criminal enforcement, border measures, civil enforcement, optical disc piracy, and Internet Distribution Internet Issues = treated separately.Wednesday, December 29, 2010 5
  6. 6. Information Customs World Customs Organization (WCO) Standards Employed by Customs for Unified Rights Enforcement (SECURE). *DISBANDED* WCO Policy Commission meeting June 2009 (Members: France, Japan, Nigeria, Norway, Russian Federation, Rwanda, Saudi Arabia, Slovenia, United Kingdom, United States, Canada, China, Germany, Malaysia, Mexico, Spain and Thailand) SG Kunio Mikuriya: New body set up under the Permanent Technical Committee or the Enforcement Committee Training to distinguish between legal & counterfeit goods. Ex-officio authority: privatization of enforcement. no complaint of rights-holders. Border search exception to 4th amendment. Routine & non-routine. neither warrant nor suspicion. HR 6702, 6588. Electronic Device Privacy ActWednesday, December 29, 2010 6
  7. 7. Criminal Provisions Criminal sanctions for IPR infringement on commercial scale. for purposes of commercial advantage or private financial gain. significant willful infringements without motivation for financial gain to such an extent as to prejudicially affect the copyright owner (e.g., Internet piracy). Ex Officio Authority for border measures. establishment of deterrent-level penalties and/or measures to promote deterrence (e.g. non-binding guidelines). footnote 14 in TRIPs: counterfeiting & piracy defined. ACTA - all unauthorized uses, rather than permitted uses.Wednesday, December 29, 2010 7
  8. 8. Internet Issues Dec. 15 negotiating meeting. Public Comment period revelations: require ISPs to take technical approaches to online piracy; engage in filtering communications of copyright infringing works. 512(m) - no requirement to monitor communications. 512(g) notice, takedown, counter-notice. DMCA 1201. Anti-circumvention. information customs officer trying to distinguish between exception re: security, interoperability, etc.. privacy. supposedly abandoned.Wednesday, December 29, 2010 8
  9. 9. Changes in US & EU Law Standard practice not to release texts during negotations But there is a claim that this would not significantly change US law. So why can’t they show everyone the text so we can comment on that?Wednesday, December 29, 2010 9
  10. 10. EU Competence Art. 133 Committee. basis for common commercial policy. ECJ 1994 WTO TRIPs decision. No competence on external policy regarding IP. (harmonization) Amsterdam Treaty: allowed to decide on IP, but only with unanimity of the European Council.Wednesday, December 29, 2010 10
  11. 11. Multi-lateralism Coalition of the Willing: Australia, Canada, EU, Japan, Jordan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, the United Arab Emirates, and the US Leadership agreement. setting positive example for nations aspiring to IPR strength improving America’s standing in the world Pluri-lateral agreement. World Customs Organization. SECURE meeting. Ecuador, Argentina, Brazil. On the defensive at multi-lateral institutions. Positive recommendation - should be discussed out in the open. CoordinationWednesday, December 29, 2010 11
  12. 12. Industry Plans world is a leaky place writing letters to key negotiators. Czech EU Parliament presidency; new US administration; Sweden. regional ‘internet forums’ intermediaries have responsibility DG Market Internet Stakeholder Forum Position paper on Development Agenda Play Western & Eastern Europe off of each other. Germany & Czech border.Wednesday, December 29, 2010 12
  13. 13. Multi-front attacks OECD Recommendation on Counterfeiting & Piracy Phase II: Piracy of Digital Content APEC 3 Model Guidelines on Anti-Counterfeiting and Piracy WCO Council replacement forWednesday, December 29, 2010 13
  14. 14. Bush Administration Coalition of the Willing Shock and Awe Surge Transparency & Accountability Terrorism, Politics of Fear. Faith-based IP to evidence-based IP.Wednesday, December 29, 2010 14
  15. 15. Recommendations release substantive language documents to the public. new IP Enforcement Coordinator open to substantial inclusion of consumer protection. include FTC. other relevant agencies. Pass Electronic Device Privacy Act. Innovation policy, rather than Enforcement Agenda.Wednesday, December 29, 2010 15