ACTA Draft Has Been Published. And Now?

2.1 Institutional Aspects

The Draft comprises provisions for so-called 'Institutional Arrangements' by foreseeing the creation of some ACTA Oversight or Steering Committee (see chapter five of the Draft, pages 33 to 36). This is done despite the fact that there are two existing competent bodies already in existence:

The Word Intellectual Proprty Organisation (WIPO), a body according to UN law, seated in Geneva, Switzerland, and already administrating a bunch of international treaties in the field of Intellectual Property, and

The World Trade Organisation (WTO), also seated in Geneva, Switzerland, is the only global international organization dealing with the rules of trade between nations based on the WTO agreements, negotiated and signed by the bulk of the world’s trading nations and ratified in their parliaments. The WTO is already administrating the Annex 1C to the Agreement Establishing the World Trade Organization, namely Trade-Related Aspects of Intellectual Property Rights (TRIPS).

So, why creating yet another body?

The first part of the answer lies in the changing political role of the WIPO. Ms Kaitlin Mara and Mr William New are just now reporting in view of the meeting of the WIPO Committee on Development and IP from 26-30 April on Intellectual Property Watch on a transformation of WIPO:

"Ongoing efforts to implement the 2007 Development Agenda at the World Intellectual Property Organization took another twist today as a new group was launched representing developing countries seeking full transformation of the United Nations body toward a development-oriented perspective on intellectual property issues. [...]"

Further in accordance with this report, the 2007 Development Agenda agreement represented 'a milestone' in achieving a 'paradigm shift in the international perspective of intellectual property'. This has been argued by the delegation of Egypt on behalf of the new group: 'While the inception of the Development Agenda marked a watershed re-balancing of the global perspective on IP, the mainstreaming and implementation of these recommendations presents a considerable challenge.' Seen from the perspective of the WIPO reformers, the Development Agenda is a shift from 'viewing IP as an end in itself to viewing it as a means to serve larger public goals of social, economic and cultural development'.

It is not a secret that this turn of WIPO was warmly welcome neither by the Bush administration in Washington, D.C., nor by some other headquarters especially in the industrialised world. And, in addition, it might not be pure chance that the coming up of the 2007 Development Agenda, on the one hand, and the start of secret ACTA negotiations, on the other hand, were somewhat coincident. In fact, ACTA appears to be a plot compassed in its core by some industrialised nations to oust WIPO which had fallen out of political grace by calling a 'coalition of the willing' to set up more traditionally minded counter-structures in the field of enforcement which are not open to any new lines of thinking coming up elsewhere. IP traditionalists had suffered hardly because of they felt that any progress on the WIPO theatre in the field of substantial IP law es well as enforcement was effectively stalled for any foreseeable future.

As ACTA is supposed to be a Trade Agreement there should be some surprise why it is not negotiated and administered under the umbrella of the WTO.

Again, political progress as understood by the United States and a number of industrialised nations appears to be difficult to obtain also on this theatre, and, hence, it looks as if in the crucial years 2006/2007 in Washington, D.C., certain ideas prevailed to create new structures instead of going on fighting within the established ones.

For now there is 'merely' an 'Oversight' or 'Steering' Committee provided in the ACTA Draft; however, in nuce the foundations are laid for a future global IP enforcement organisation towering over the entire industries of all countries, shaping allowed or tolerated business models, and limiting rights of ordinary citizens in order to keep up the traditional order and function of Intellectual Property.

Of course, on the long run ACTA can make sense only if as many countries as possible will eventually join. But ACTA seems to be carefully drafted to exercise some degree of control on accessions: According to Article 6.1 of the Draft, decisions on accession shall be taken by the Oversight Committee: ACTA is not open to all coutries at liberty. Moreover, the Oversight Committee also has to approve an agreement on the terms of accession.

2.2 Scope and Subject-Matter of ACTA

Again despite its title, ACTA does mot mainly deal with 'Counterfeiting'. This concept normally is used to denote an imitation, usually one that is made with the intent of fraudulently passing it off as genuine. Counterfeit products are often produced with the intent to take advantage of the established worth of the imitated product. ACTA does not stop after having regulated specific measures against counterfeiting, e.g. border measures against faked handbags or faked pharmaceuticals. Instead, it represents a very broad approach to govern standards of enforcement of all sorts of IP rights (including patents) in all industries on a global basis even in such contexts where it might be difficult to tell infringement from non-infringement. The political core of its scope comprises the inclusion of the so-called 'Digital Environment'. In a first place this means that the Internet shall be subjected to some sort of a global regime tailored by IP proponents to make its structure a more friendly environment for IP enforcement measures.

I won't go into any detailled analysis of Section 4 of the ACTA Draft here concerning 'Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment'. Just a few remarks:

ACTA will create new international norms, beyond those agreed in the 1994 Agreement on Trade Related Aspects of Intellectual Property (TRIPS) and the 1996 WIPO Copyright Treaty and Performances and Phonograms Treaty. For example, the acquis communautaire of the European Union currenly comprises provisions for establishing the mere conduit privilege. According to Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, an Internet service provider can benefit from the exemptions from liability for 'mere conduit' and for 'caching' when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission. (Nevertheless, a service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of 'mere conduit' or 'caching' and as a result cannot benefit from the liability exemptions established for these activities.) Despite some grave problems when applying this provision in case law, the 'mere conduit' privilege is a cornerstone of EU acquis communautaire fostering the development of the Internet throughout Europe.

Present ACTA Draft makes clear that - influenced mainly by lobbyist groups of copyright-based industries still running their trade on the basis of on traditional business models - this present broad approach of a 'mere conduit' exemption might get under pressure to be reduced substantially. The combinatoric permutations of the alternative options as presented in Article 2.18 are too confusing to be discussed here in their entirety. But some of the diverging alternatives, e.g. on page 21, line 2, are expressing options to hold an Internet service provider liable if he 'has reasonable grounds to know that the infringement is occurring'. From where should such knowledge come? Some combinations of the textual building blocks might even be construed in a way that Internet service providers will be mandated to provide on-line filtering systems so that they can block 'mere conduit' of infringing contents if they have given notice. Such measures certainly would go well beyond current EU acquis communautaire.

3. Conclusion

While certainly it can be greeted that - albeit only after some time of being exposed to politically motivated pressure from general public - the ACTA negotiating consortium eventually has decided to disclose the ACTA Draft text, a number of questions remain open.

The first point is the question as to whether or not we need another organisational structure for co-ordinating IP enforcement on a global scale. I am inclined to say that the move to create ACTA-specific structures was a misguided decision taken from the viewpoint of the former U.S. Administration under G. W. Bush. In oder to increase acceptance, it appears to be crucial to integrate such matter back into WTO or WIPO. Maybe that I would see a small preference for integration into WTO.

The second point is that the overwhelming general impression of the ACTA text is that in its core a bunch of proponents of traditionalist copyright business models keeps on to be determined to re-mold the legal, business, and technical structures of the Internet as we know it in order to obtain another and different system wherein copyright infringement can easier be dealt with. However, such approaches all would have severely side effects, and I am quite afraid that those side effects might well outweigh the benefits of any conceivable copyright enforcement. The Digital Environment of the future will most certainly be more co-operative than anything we have seen before, and it is likely that many traditional copyright-based business models like old-fashioned newspapers will fade out, irrespective of any measures taken to strengthen copyright enforcement.

Recently Mr Duncan Bucknell wrote on Think IP Strategy:

"[...] It seems to me that there’s a growing battle over the place of IP in the world at large. Just look, for example, at the increasing amount of negative rhetoric about IP, such as ‘patents kill’ (by excluding access to the innovations that they protect), or the growing lobby for digital content to be free. It’s a groundswell that is supported by the purchasing public and so is putting an unprecedented amount of pressure on companies to explain why we even need IP and to open themselves up to debate. Being able to justify why and what you’re doing takes corporate IP strategy to a new level. The world has moved on a long way from issues of just filing and enforcing patents and trademarks, but lots of IP managers are still stuck in the past. The key is to develop a strategy for managing IP in this new world, and that means being able to prove that your approach adds value to the business, whatever you choose to do [...]."

I do not think that if ACTA gets rushed trough more or less on the basis of what now has been published the justification of IP will be made easier. To the contrary, I am afraid that a law drafted as hasty and bad as ACTA might finally turn out to be a nail in the coffin of IP if in the general public an impression prevails that ACTA hinders tremendous legitimate options of turning upside down in the world of future innovative business models only in order to safeguard a meager subsistence of certain traditional business models which might have no long-term future anyway. Think of Mr Schumpeter and his concept of creative destruction.