ACTA Communique: “ACTA is the predictably deficient product of a deeply flawed process”

Representatives from the US, the EU, Japan, South Korea, Canada, Mexico, Australia, and New Zealand will convene this Monday in Lucerne for the Ninth round of ACTA negotiations. President Obama has expressed his commitment to “conclude these negotiations soon.”

Last week, a group of 90 academics, practitioners and public interest organizations gathered to analyze the most recent ACTA draft and have released this statement detailing the ways ACTA threatens public interests.

Despite the April 2010 release of the draft text after Round 8 of negotiations, the shadowy, “Gollum-like” ACTA remains worrisome on both process and substance. Overall, the ACTA text and the process that generated it have followed a path of private drafting and public equivocation.

One example from the April 2010 draft text: ACTA Article 2.14 would mandate criminal liability for “willful trademark counterfeiting or copyright or related rights piracy on a commercial scale.” It goes on to define “willful copyright or related rights piracy on a commercial scale” as including “willful copyright or related rights infringements that have no direct or indirect motivation of financial gain.” Any agreement that envisions “commercial scale activity” as including actions that have "no direct or indirect motivation of financial gain" should be negotiated out in the open, if only so the logic behind such linguistic contortions could be fully appreciated by the people who may eventually be subject to this form of criminal liability.

Negotiators insist that ACTA will not change existing law. AUSTR Stanford McCoy, for example, wrote that “The ACTA negotiations are one of many international efforts to fight counterfeiting and piracy – not to ‘transform’ already strong US and European Union copyright laws.”

But, this is true only in a narrow and technical sense -- ACTA will not [directly] change [statutory] law. What it stands to do, however, is freeze US law in current form, enshrine robust liability abroad without ensuring that equally vigorous limitations exist to protect, among other things, expression and user rights, and powerfully influence legal norms surrounding IP law.

The Obama administration’s plan to pass ACTA as a sole executive agreement also raises constitutional concerns.

The folks at Public Knowledge have provided an online form for submitting concerns about ACTA to the offices of the President, Vice President, and USTR.