Apr 012013

ustr-logoLast month, the U.S. Trade Representative’s Trade Policy Report raised some eyebrows when it scolded Canada for not meeting its ACTA “obligations,” despite the fact that the Agreement is not in effect.  (See for instance, Michael Geist’s blog quoting the report).  The Trade Policy Report also noted that the U.S. is “working with Japan and other negotiating parties to bring the ACTA into force.”

Today USTR published another one of its annual reports, the National Trade Estimate (NTE) Report on Foreign Trade Barriers, which continues to discuss ACTA as a trade agreement that is moving forward. Continue reading »

Oct 152012

Image by Forget The Box

A leaked text of the Canada-Europe Free Trade Agreement, and an email sent from the Secretariat of the Council of the European Union to the Member States and the Commission, are fueling concern about the agreement’s intellectual property provisions.

The Canadian Press reports that Industry Canada and Health Canada conducted a joint research project to estimate the cost to Canada of implementing the patent term restoration required by the leaked text.  They estimated that “the EU proposal would add an average life of 2.66 years to a typical drug patent, and increase Canadian drug costs by between $795 million and $1.95 billion annually.” Continue reading »

Jun 062012

This brief article will discuss the March 17, 2008 RIAA Suggestions for the Anti-Counterfeiting Trade Agreement (ACTA)[1] and will pinpoint the Suggestions that did not make it into the final draft of ACTA, but are making a ‘come-back’ through the U.S.-proposed chapter on intellectual property of the Trans-Pacific Partnership Agreement (TPP).  Although ACTA negotiations began in 2008, the first leaked draft was not available until March of 2010 and most of the subsequent drafts were also leaked, and not officially published.[2] For the most part, the negotiating Parties, including the U.S. had “attempted to keep the ACTA negotiations in the proverbial ‘black box’.”[3] Despite this utmost secrecy from the public, it seemed clear that a select batch of industry groups were heavily influencing the U.S.’s negotiation stance.  One such group that seemed to have influenced the USTR is the Recording Industry Association of America (RIAA).  On March 17, 2008, the RIAA submitted to the USTR a ‘wish-list’ of provisions that it wanted to be contained in ACTA.  Shortly thereafter, the text of the RIAA submission was leaked and became available online.[4] Continue reading »

May 312012

Today, three Committees of the European Parliament voted to recommend the rejection of ACTA by the full Parliament – the Committee Civil Liberties (LIBE), Committee on Legal Affairs (JURI) and the Committee on Industry, Research and Energy (ITRE).  In mid June, ACTA will go before the Committee on International Development (DEVE).  On June 21, it will go before the fifth and final Committee on International Trade (INTA).  22 European countries have signed ACTA, but the agreement must be approved by the full Parliament in order to take effect.  The vote by the full Parliament is scheduled for July 3. Continue reading »

May 292012

The Associated Press has reported that “Dutch lawmakers adopted a motion Tuesday urging the government not to sign” ACTA, and that “Lisa Neves Goncalves — a spokeswoman for the Dutch Ministry of Economic Affairs, Agriculture and Innovation — said the government had earlier this year stated it would avoid signing the treaty until it was clear it did not breach the Dutch or EU constitutions.”

On May 31, three European Parliamentary Committees will hold votes on ACTA – Civil Liberties, Justice and Home Affairs (LIBE), Legal Affairs (JURI), and Industry, Research and Energy (ITRE).  Laquadrature du Net and the Foundation for a Free Information Infrastructure have written open letters to each of the committees. [Full text of letters from  Laquadrature du Net and FFII.]  . Continue reading »

May 242012

Recently, Inside U.S. Trade reported that Australia, New Zealand and Singapore have proposed replacing some elements of the U.S. proposed TPP chapter on IP with provisions from ACTA.   The table below compares the provisions from the two texts (as well as with TRIPS and the U.S.-Chile Free Trade Agreement). Overall, the comparative analysis shows that TPP contains a plethora of TRIPS-plus provisions as well as ACTA-plus and Chile FTA-plus provisions.

The chart is organized in the following order of categories:  General Provisions; Scope; Special Measures Relating to Enforcement in the Digital Environment; Technological Protection Measures; Criminal Enforcement; Provisional Measures; Civil and Administrative Procedures and Remedies; Special Requirements Related to Border Enforcement; Rights Management Provisions.

This table is the product of work by multiple PIJIP fellows, including myself, Carrie Ellen Sager, and Sophia Castillo.

Click here to download the table.

May 232012

The following is an excerpt from Jack Goldsmith’s blog titled “The Doubtful Constitutionality of ACTA as an Ex Ante Congressional-Executive Agreement.” For the full blog, click here.

Dozens of scholars have written a letter to complain about the constitutional basis for President Obama to ratify the Anti-Counterfeiting Trade Agreement (ACTA).  ACTA, for those who don’t know, is a controversial trade pact designed to tighten domestic enforcement of global intellectual property rules.  The administration originally maintained that it had the authority to join ACTA for the United States as a sole executive agreement, without authorization from Congress or consent by the Senate.  Continue reading »

May 162012

Today, a group of nearly 50 U.S. legal scholars sent an open letter to the Members of the Senate Finance Committee asking them to “exercise your constitutional responsibility to ensure that the Anti-Counterfeiting Trade Agreement (ACTA) is submitted to [Congress].” This note explains the legal and political context for the letter, including the mounting barriers to ACTA ever going into force as a binding international treaty.

[PRESS RELEASE:  Law Professors Declare Anti-Counterfeiting Trade Agreement Unconstitutional Without Congressional Approval]

[see also:  EFF Blog | Public Knowledge ACTA page | Margot Kaminski’s TechDirt story]

The letter is the latest in a long series of exchanges between law professors, Senators and the Administration on the validity of the administration’s Constitutional claim that it can ratify the Anti-Counterfeiting Trade Agreement without the Congressional approval that normally accompanies any binding international trade agreement. Continue reading »

May 142012

(cc dherrera_96 bit.ly/LxtI9S)

The 12th round of Trans Pacific Partnership talks are underway in Dallas.  Negotiators are covering intellectual property topics including enforcement and patents.  As reported by Inside U.S. Trade, New Zealand, Australia and Singapore have proposed replacing some elements of the US proposal on IP enforcement with ACTA language. The US proposal for IP enforcement in the TPP goes beyond ACTA in a number of ways.  Under  the US proposal, an infringement carried out without regard to financial gain may be still considered “commercial scale” – and therefore subject to criminal penalties.  The US TPP proposals also requires penalties to be applied in certain cases where infringements are not carried out “willfully.”  For a good analysis of the differences between TPP and ACTA, see former PIJIP fellow Carrie Sager’s table comparing the two). Continue reading »

Apr 262012

Abstract: This paper explores why the Office of the U.S. Trade Representative (USTR) seems so shocked by current demands for what seem like basic democratic elements of transparency and public involvement. I summarize the current state of the Anti-Counterfeiting Trade Agreement (ACTA) and what it contains. ACTA is part of a larger trend of international lawmaking in the United States, a shift from Article II treaties to executive agreements. ACTA is also part of a longstanding trend of coziness between industry groups and government representatives within IP policy-making. Trade negotiations made through the executive branch are particularly subject to industry capture, and that industry capture is particularly problematic when it is located in an agency of the government that does not envision itself as publicly accountable. Continue reading »

Apr 112012

Another round of TPP negotiations on intellectual property is underway this week in Chile, and two additional countries are looking to get in on the action: Mexico and Canada. However, both countries may have trouble getting their citizenry to agree to the IP provisions if they remain in their current form. To determine how much each country would have to change its laws to comply with TPP requirements, PIJIP asked me to compare the TPP’s leaked IP chapter with the existing law in each country, as well as the countries’ obligations under NAFTA.

Unsurprisingly, the TPP provides far more stringent limitations than NAFTA, and would require major legal changes by both countries. Continue reading »

Mar 062012

Today Representative Darrell Issa has issued a press release blasting the Anti-Counterfeiting Trade Agreement.  Issa notes that the agreement was negotiated in secret, may lead to poor consequences for consumers, and “appears to be an unconstitutional power grab begun by the Executive Branch to bypass Congress’ Constitutional authority over international commerce and intellectual property rights protections.”  He cites a letter from Senator Wyden to the President objecting to the Administration’s assertion that ACTA does not need Congressional approval.  Continue reading »