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Digital rights advocacy groups Electronic Frontier Foundation (EFF) and Public Knowledge have filed a lawsuit against the Office of the United States Trade Representative (USTR). According to the groups, the office has neglected to respond to their Freedom of Information Act request that seeks disclosure of the USTR’s contents of the Anti-Counterfeiting Trade Agreement (ACTA). The Agreement is presently being negotiated between Australia, Canada, the European Union, Japan, Korea, Mexico, Morroco, New Zealand, Singapore, Switzerland, United Arab Emirates, and the United States.
The ACTA, a multilateral executive agreement aimed at curbing piracy and counterfeiting, has been the source of much consternation over the past year. First announced by the U.S. government in October 2007, the Agreement has been viewed with disfavor by rights groups because of what they believe are far-reaching, negative implications for individual liberties. Furthermore, the groups have denounced the largely secret way in which the Agreement is being negotiated and drafted. The contents of the drafts and discussion papers are not revealed to the public.
In May 2008, however, a discussion paper about the proposal was leaked and its potential scope was clarified. Although the Australian trade minister described the Agreement as one that will “establish a new standard of intellectual property rights (IPR) enforcement to combat the high levels of trade in counterfeit and pirated goods worldwide,” the document suggests the breadth and reach of that new standard can easily cross the line into infringement on personal liberties. The Agreement may, for example, criminalize non-commercial piracy. In that instance, the random YouTube videos sent between friends could carry a criminal penalty. It also calls for a legal framework that would include enforcement, border patrol and measures, civil enforcement, optical disc piracy, and Internet distribution and information technology. Finally, the discussion paper suggests that personal computers, iPods, and other electronic devices will be subject to search and seizure, particularly at geographic borders.
It is undeniable that piracy injures businesses and consumers and enables the proliferation of inferior goods that can lead to brand dilution. It is unclear, however, that developing a strict intellectual property regime that criminalizes common behavior will effectively cure the ills the governments wish to cure. Furthermore, establishing a new “global” standard with only specific countries involved raises forum shopping and enforcement concerns.
Clearly, a lack of transparency does little to foster public support of an agreement that will require a change in individual behavior. The outcome of lawsuit remains to be seen. However, this agreement is one that has the potential to change the intellectual property landscape. It is therefore imperative that the public be informed of the nature and content of the agreement as it seems it may cross the line from simply protecting IP rights, to curtailing individual liberties.
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