Two tales of a treaty revisited: the proposed Anti-Counterfeiting Trade Agreement (ACTA)

Over the past four years, through a coordinated series of public announcements that seemed to have been stimulated in part by previously leaked documents, details gradually came to light concerning negotiations over a proposed new Anti-Counterfeiting Trade Agreement (ACTA). According to the governments involved in these closed-door “plurilateral” trade negotiations, the purpose of ACTA was simply to help fight the proliferation of counterfeit and pirated goods in international trade. From the outset, however, the negotiations were embroiled in controversy, for at least four reasons. First, while the negotiations were initially carried out behind closed doors, industry representatives were apparently being supplied with information that was not being disseminated to the public. Second, the “plurilateral” nature of the negotiations aroused suspicions that the ACTA negotiations were but the latest example of “forum-shifting” — a well-documented tactic that is apparently being deployed by owners of intellectual property (IP) in an effort to ratchet up up international standards for the protection of private intellectual property rights (IPRs). These procedural concerns about the conduct of the negotiations, in turn, contributed to two further suspicions about the substantive purpose and scope of ACTA. The first suspicion was that ACTA was simply an effort on the part of intellectual property owners to socialize the enforcement costs of their private IPRs by enhanced civil, criminal, and border enforcement proceedings and remedies. The second suspicion — generated in part by a leaked negotiating document — was that the focus of these civil, criminal, and border enforcement provisions would not be limited to targeting commercial trade in counterfeit and pirated physical goods, but would also extend to “significant willful infringements without motivation for financial gain to such an extent as to prejudicially affect the copyright owner (e.g., Internet piracy).” To the suspicious eye, this verbatim quote from the leaked document clearly seemed to be referring to digital file-sharing — a controversial consumer phenomenon, to be sure, but quite distinct from the issue of commercial trade in counterfeit and pirated physical goods.A particularly jolting development in the effort by critics to secure more specifics concerning the ACTA negotiations occurred in March 2009, when, notwithstanding President Obama's campaign promises of greater transparency in U.S. government policymaking, the Office of the U.S. Trade Representative (USTR) denied a Freedom of Information Act (FOIA) request for a copy of the ACTA discussion draft and related materials on the ground that they were “classified in the interest of national security.” While the invocation of national security may have been simply a ruse to camouflage and avoid exacerbating growing divisions among the negotiating parties, it proved useful to take this national security claim at face value, as it offered a starting point for this article’s predecessor — which sought “to provide two alternative tales of the treaty with a view to identifying and clarifying the various controversies currently surrounding the negotiations.”After revisiting the two tales told prior to the approval of the final draft of ACTA, this article will offer two additional cautionary tales about ACTA’s ultimate impact on the development of intellectual property enforcement standards.