IP Justice Comments to U.S.T.R. on the proposed Anti-Counterfeiting Trade Agreement (ACTA) 

21 March 2008
IP Justice appreciates this opportunity to provide comments to the Office of the United States Trade Representative on the proposed Anti-Counterfeiting Trade Agreement (ACTA).  IP Justice is an international civil liberties organization that promotes balanced intellectual property laws and Internet policies that encourage innovation and creativity (http://www.ipjustice.org).
IP Justice firmly believes that ACTA’s costs to the public far outweigh any public benefit it might provide.  The financial expense to tax-payers to fund ACTA would be enormous and steal scarce resources away from programs that deal with genuine public needs like providing education and eliminating hunger.  ACTA would burden the judicial system and divert badly needed law enforcement and customs resources away from public security and towards private profit.
Unfortunately the zeal to “beef-up” enforcement measures on which ACTA rides often leads to the violation of privacy rights, bypassing due process protections, and cutting-off the free flow of information.  ACTA proposes to set new international norms to lock countries into pre-determined policy choices when flexibility is needed.
ACTA’s premise that the government should spy on its citizens and exchange that data with other governments in order to protect the intellectual property industry is profoundly misguided.  The number of reported cases of US governmental spying on American citizens has never been so high, and ACTA invites a breeding ground for further abuse and erosion of citizen’s privacy.
ACTA proposes a policy of “one-size-fits-all” (X-Large) for intellectual property legal and enforcement measures.  But the very nature of a digital environment requires that we leave a breathing space for flexibility in information policymaking that is necessary for information and creativity to flourish.  The imposition of new international enforcement measures leaves nations with no opportunity to set alternative policy priorities, despite the fact that national priorities regarding information policy vary dramatically from country to country.  In the past, the US economically flourished because of its tradition of ensuring a broad range of flexibilities in intellectual property law and by permitting a robust system of limitations and exceptions to exclusive rights.  Maintaining flexibility to respond to technological change is important for innovation and creativity in developed and developing countries alike.
ACTA’s focus on infringements in the digital and online environment is misguided because it duplicates recent efforts of the WIPO Internet Treaties without learning from the experience. Many countries are only beginning to implement the WIPO Internet Treaties, so it would be unwise to add new obligations to countries that have not had the benefit of the experience of using the WIPO Internet Treaties to address their concerns.
Rights owners are increasingly taking enforcement measures into their own hands by applying digital restrictions to information and entertainment to control its use.  This reality provides even less justification for an allocation of additional public resources toward that end.  Particularly since major copyright owners implement digital restrictions that far exceed the level of control over use that copyright law grants to rights owners, the public should not compound that fact with simultaneously devoting even more public resources to further protect those same narrow private interests.
We are concerned about ACTA’s negative impact on free market competition by further shoring-up information monopolies.  ACTA also threatens to hamper market competition by reinforcing new monopolies on adjacent products (for example, like the way copyright laws are increasingly used to enforce business models over printer toner cartridges rather than protect copyrights).
We note that ACTA’s proponents employ emotional rhetoric about dangerous drugs in order to justify expanded protections over Hollywood music and movies.  Legal and enforcement mechanisms need to draw an important distinction between the types of infringements that actually do cause the public serious harm and risk of personal safety and those infringements that only impact profit margins for major entertainment companies.  This distinction has been entirely lost in ACTA discussions.
The lack of transparency and public participation in the process to negotiate ACTA is deeply troubling to anyone who cares about democracy and the public interest.  Outside of a scant press release or two, the USTR has provided the general public with virtually no public information about the proposed substance of ACTA.  There are several recent news reports however, of USTR speeches given to international business groups in order to brief them on ACTA and listen to the concerns of transnational companies.  No such effort has been made to brief public interest groups with information on the developments of ACTA or to receive input from non-industry sectors of society.
Therefore, we have serious concerns about the inadequacy of public input, absence of non-industry participation, and lack of transparency in the negotiation process surrounding ACTA.  Furthermore, the lack of developing county participation in the ACTA process only underlines the flawed and undemocratic process behind ACTA.  Given the differing needs of countries in differing stages of development, ACTA’s failure to include developing countries in its early negotiations only emboldens ACTA’s own illegitimacy as a proposed legal instrument.  ACTA’s circumvention of existing international legal fora such as WIPO or the WTO TRIPS Council where developing country views must be considered, in order to conclude this trade pact outside of the restraints of democratic process and having to include developing country perspectives also points to ACTA’s “anti-public-interest” agenda.
We commend the USTRs solicitation of these public comments on ACTA, but believe the given timeframe in which to submit comments has been far too short and the notices and other information too difficult to find for the general public to adequately participate. 
Therefore, we respectfully request that the timeframe in which citizens may submit comments be extended in order to achieve wider public participation.  We further ask that the USTR organize discussions with public interest NGOs to better understand non-industry concerns about ACTA.  And we strongly urge the USTR to abandon support for ACTA due its undemocratic process and its misguided purposing of public resources towards private interests.
IP Justice would welcome the opportunity to provide further input into the ACTA process and remains available for any further questions or discussion.
Very truly,
Robin Gross
IP Justice Executive Director