Call for Support: International Civil Society Declaration on the Public Interest Aspects of the Proposed Anti-Counterfeiting Trade Agreement (ACTA)
Civil Society Declaration Now Open for Signature by Public Interest Organizations and Individuals
19 June 2010 – Washington, D.C.
The Anti-Counterfeiting Trade Agreement (ACTA) is a dangerous proposal to radically expand intellectual property rights at the global level. The draft agreement has been negotiated in secret, without inclusion of developing nation perspectives, and without any participation from civil society or regard for the global public interest. ACTA specifically targets the Internet and regulates the flow of information in a digital environment. ACTA would create significant negative consequences for fundamental freedoms, access to medicines, innovation, the balance of public/private interests, access to knowledge and culture, to name a few of its problems. ACTA represents a "wish list" from Hollywood and Big Pharma which will be imposed unilaterally on developing countries through trade pressure from the US, Europe and other wealthy states.
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From: "Sean Flynn" <email@example.com>Date: June 19, 2010 10:30:38 AM PDTTo: "Robin Gross" <firstname.lastname@example.org>Subject: acta communique
The DRAFT statement below 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. The statement is now open to endorsements.
The latest version of the draft communiqué is now posted to a public blog post at:
Please share the draft with others, circulate on your blogs, etc.
THIS DRAFT STATEMENT IS NOW OPEN FOR INDIVIDUAL AND ORGANIZATIONAL ENDORSEMENTS AS WELL AS EDITING COMMENTS.• Please send signatures to: email@example.com• Please send edits to: firstname.lastname@example.org
EDITING SUGGESTIONSWILL BE ACCEPTED UNTIL NOON MONDAY JUNE 21. THE FINAL TEXT WITH EDITS INCLUDED WILL BE RELEASED BY 5PM MONDAY JUNE 21.
THE FINAL STATEMENT WILL BE RELEASED TO THE PUBLIC WITH ENDORSEMENTS ON WEDNESDAY JUNE 23 AT 10AM. ENDORSEMENTS WILL BE ACCEPTED UNTIL JUNE 23 AT 9AM.
ENDORSEMENTS:WE WILL ACCEPT PROVISIONAL ENDORSEMENTS NOW. ENDORSERS WILL BE GIVEN THE OPTION TO OPT-OUT WHEN THE FINAL TEXT IS CIRCULATED BY 5PM MONDAY JUNE 21.
FOR INDIVIDUAL ENDORSEMENTS, SEND YOUR NAME, TITLE AND ORGANIZATION AND PLACE (CITY, COUNTRY) OF OCCUPATION to email@example.com
FOR ORGANIZATIONAL ENDORSEMENTS, ENTER THE NAME OF THE ORGANIZATION AND PLACE(S) (CITY(IES), COUNTRY(IES)) IN WHICH THE ORGANIZATION HAS OFFICES to firstname.lastname@example.org.
INDIVIDUALS WITHIN SIGNATORY ORGANIZATIONS MAY ENDORSE AS INDIVIDUALS AS WELL AS BEING PART OF THE ORGANIZATIONAL ENDORSEMENT.
PLEASE CIRCULATE WIDELY.
DRAFT Urgent Communique: Consultation of International Experts on ACTA and the Public Interest
Release Date: June 23, 2010
American University Washington College of Law
International Experts Find that Pending Anti-Counterfeiting Trade Agreement Threatens 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:
-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 whcih 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";
-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.
- Please send signatures (individual or Organization, City, Country) to: email@example.com
- Please send edits to: firstname.lastname@example.org
Sean FlynnAssociate DirectorProgram on Information Justice and Intellectual PropertyAmerican University Washington College of Law202 274 4157www.pijip.org