Experts Draft Document Critical Of ACTA: Signatures Wanted

Experts Draft Document Critical Of ACTA: Signatures Wanted: "With ACTA finally being officially 'released' back in April, the Program on Information Justice and Intellectual Property, at American University's Washington College of Law, brought together a ton of actual stakeholders and experts last week to discuss what the draft actually said -- and found severe problems with it. Together, they put together a draft letter for signatures, which they plan on releasing on Wednesday of this week. The current draft reads as follows:

This
DRAFT statement reflects the conclusions reached at a meeting of over 90
academics, practitioners and public
interest organizations from five continents gathered at American
University Washington
College of Law, June 16-18, 2010. In the days following the meeting, the statement received the individual and organizational endorsements listed below, and is still open for further endorsements at www.pijip.org

The meeting, convened by American
University's Program on Information Justice and Intellectual Property,
was called to analyze the official text of the Anti-Counterfeiting
Trade Agreement (ACTA), released for the first time in April, 2010,
after years of secretive negotiations. The text was released in the
context of public criticism of the process and presumed substance of
the negotiations (see Wellington Declaration, EU Resolution on Transparency and State of Play of the ACTA Negotiations). Negotiators claim that ACTA will not harm significant public interests.

We find that the terms of the agreement threaten numerous public interests, including nearly every concern
specifically disclaimed by the negotiators in their announcement.

The proposed agreement is a deeply flawed product of a deeply flawed process.

What
started as a proposal to coordinate customs enforcement offices has
morphed into a massive new international intellectual property (IP) and
internet regulation with grave consequences for the global economy and
governments' ability to promote and protect public interests.

Any
agreement of this scope and consequence must be based on a broad and
consultative process and reflect a full range of public interest
concerns. As detailed below, this text fails to meet these standards.

Recognizing
that the terms of the agreement are under negotiation, a fair reading
of the proposed text as a whole leads to our conclusions that ACTA:

THE INTERNET
-Encourages internet service providers to police users of the internet without adequate court oversight or due process;

-Globalizes
'anti-circumvention' provisions which threaten innovation, competition,
open source business models, interoperability, copyright exceptions,
and user choice;



FREE TRADE AND ACCESS TO MEDICINES

-Disrupts the free trade in legitimate generic medicines and other
goods, and sacrifices the foundational principle that IP rights are
territorial, by
requiring customs authorities to seize goods in transit countries even
when they do not violate any law of the producing and importing
countries;

-Does
little or nothing to address the problem of medicines with insufficient
or wrong ingredients as the majority of these are not IP but regulatory
system problems.

-Extends the powers of custom officials to search and seize a wide
range of goods, including computers and other electronic devices, without
adequate safeguards against unwarranted
confiscations and privacy invasions;

-Extends
'ex officio' border search and seizures from willful, commercial scale
trademark
counterfeiting to a broad range of intellectual property infringements,
including 'confusingly similar' trademark violations, copyright
infringement standards that require interpretation of 'fair use' or
similar user rights, and even to patent cases which frequently involve
complex questions of law and fact that are difficult to adjudicate even
by specialist courts after full adjudicative processes;

FUNDAMENTAL RIGHTS AND FREEDOMS
-Will
curtail full enjoyment of fundamental rights and liberties, including
rights to privacy and the protection of personal data, health, access
to information, free expression, due process and presumptions of
innocence, cultural participation, and other internationally protected
human rights;

SCOPE AND NATURE OF IP LAW
-Distorts the balance fundamental to IP law between the rights and
interests of proprietors and users, including by

• introducing very
  specific rights and remedies for rights holders without correlative
  requirements to provide exceptions, limitations, and due process
  safeguards for users;
• shifting
  enforcement from private civil mechanisms to public authorities and
  third parties, including to customs officials, criminal prosecutors and
  internet service providers -- in ways that are likely to be more
  sensitive to proprietary concerns and less sensitive to user concerns;
• omitting liability and disincentives for abuses of enforcement processes by right holders; and
• requiring the adoption of automatic damages
  assessments unrelated to any proven harm;

-Alters the traditional and constitutionally mandated law making processes for IP by:

• locking
  in and exporting controversial
  aspects of US and EU enforcement practices which have already proven
  problematic, foreclosing future legislative improvements in response to
  changes in technology or policy;
• requiring substantive changes to intellectual property laws of a
  large number of negotiating countries.

INTERNATIONAL TRADE AND DEVELOPMENT
-Will
disproportionately harm development and social welfare of the poor,
particularly in developing countries, including through raising
unjustifiable trade barriers to imports and exports of needed medicines
and other knowledge embedded goods;

-Contains provisions inconsistent with
the WTO Agreement on Trade Related Aspects of Intellectual Property
Rights (TRIPS Agreement);

-Conflicts
with the World Trade Organization Doha Declaration on TRIPS and Public
Health and World Health Assembly Resolution 61.21 by limiting the
ability of countries to exercise to the full flexibilities in the TRIPS
agreement that can promote access to needed medicines;

-Circumvents
and undermines the commitments agreed to under the World Intellectual
Property Organization development agenda, particularly recommendation
45 committing to 'approach intellectual property enforcement in the
context of broader
societal interests and especially development-oriented concerns,' and
'in accordance with Article 7 of the TRIPS
Agreement';

INSTITUTIONAL ISSUES
-Creates a new and
redundant international administration for IP issues outside of WIPO or
the WTO with broad powers but limited transparency, threatening
multilateralism in international IP norm setting;

-Encourages
technical assistance, public awareness campaigns, and partnerships with
the private sector that appear designed to promote only the interests
of IP owners;

CONCLUSIONS ABOUT THE DEMOCRATIC PROCESS

The current process
for considering public input into ACTA is fundamentally flawed in
numerous respects. In many countries, the only consultations taking
place are with select members of the public, off-the-record and without
benefit of sharing the latest version of the rapidly changing text.
There is little possibility that a fair and balanced agreement that
protects and promotes public interests can evolve from such a distorted
policy making process.

Governments, right holders and civil society should have an open
and evidence-based discussion on the right strategy to confront
willful commercial scale trademark counterfeiting and commercial scale copyright piracy. This discussion should
take place in multilateral and national open and on-the-record forums with access to current negotiating text so that all
interested stakeholders can participate.

They are looking for signatures to include on the document before it is released on Wednesday. If you agree with what the document says, feel free to follow the instructions on the site to add your name to the list. Will it actually have any impact? Who knows, but it's about time that those who have been blindly supporting ACTA realize that the concerns here are legit, and weren't all wiped away just because the government released the document.

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