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Toward an ACTA Super-Structure: How ACTA May Replace WIPO

By Michael Geist

[This post appears jointly here and at the PublicACTA site]

For the past two years, most of the ACTA discussion has centered on two issues: (1) substantive concerns such as the possibility of three strikes and a renegotiation of the WIPO Internet treaties; and (2) transparency issues.  The leak of the comprehensive ACTA text highlights the fact that a third issue should be part of the conversation.  The text reveals that ACTA is far more than a simple trade agreement.  Rather, it envisions the establishment of a super-structure that replicates many of the responsibilities currently assumed by the World Intellectual Property Organization.  Given the public acknowledgement by negotiating countries that ACTA is a direct response to perceived gridlock at WIPO, some might wonder whether ACTA is ultimately designed to replace WIPO as the primary source of international IP law and policy making.


I wrote about the ACTA threat to WIPO last year, arguing that successful completion of the ACTA negotiations would undermine the WIPO Development Agenda, since countries such as the U.S. and E.U. would have little incentive to advance the agenda.  The ACTA text suggests that it goes much deeper than just slowing progress at WIPO, it effectively replaces WIPO in many respects. Canada is the lead drafter of the institutional ACTA arrangements.

The current ACTA draft includes detailed provisions on committees, dispute resolution, and treaty formalities.  These include:

1.   The creation of an ACTA Oversight Committee. 

The committee would:

• supervise ACTA implementation
• facilitate amendments to ACTA
• consider any other ACTA-related matter
• establish standing committees, working groups or task forces to "undertake monitoring and the evaluation of the agreement." 
• The EU would like the committee to "endorse best practice guidelines for implementing ACTA."
• meet annually or bi-annually in Geneva (there is disagreement on whether every 1 or 2 years)

The committee would also serve as the source for resolving disputes.  The inclusion of a dispute resolution mechanism - again proposed by Canada - is proving controversial. New Zealand would like it excluded altogether, Australia wants the committee to merely facilitate the avoidance of disputes, and Japan wants to discuss later.  It would appear that Canada has bigger plans, proposing that the committte will "resolve disputes that may arise regarding its interpretation or application."  There are no specific details on how the dispute resolution system would function.
 
2.   The creation of an ACTA Secretariat

The country that serves as chair of the ACTA Oversight Committee would provide the secretariat.  There is currently some disagreement on this issue.  For example, Japan favours using an international organization to provide secretariat services, Korea wants to entrust the Secretariat to the WTO, and Morocco supports the creation of a permanent secretariat (ie. not rotating with the committee chair).

3.   Permit ACTA observers

The current draft provides:

"Countries candidate to become a Party to the Agreement may be invited [by the Committee] to attend sessions or parts thereof of the Oversight Committee as observers.  An invitation under the same status may be extended [by the Committee] to international organizations active in the field of intellectual property and to non-governmental groups of intellectual property stakeholders."

Australia supports adding non-Party states, noting this could help enforcement efforts with non-parties and increase global coordination.

4.   Open ACTA to other countries

There is some disagreement on who else may join ACTA.  Proposals include being an existing member of WIPO, the WTO, or the United Nations.  ACTA itself will take effect 90 days after five countries have deposited their instruments of ratification, acceptance, approval or accession.  Australia has proposed keeping ACTA open for signature for a long period of time - up to five years - to provide potential members who are not participating in the negotiations time to sign.

5.   Capacity Building and Technical Assistance

A key role for WIPO in recent years has been to provide capacity building and technical assistance to developing countries.  ACTA contains specific provisions to assume this role.  In fact, Morocco is calling for a "special allocation fund" to finance these ACTA intiatives which can include "promoting the culture of intellectual property", training, capacity building in institutions, statistical evidence gathering, joint operations, and enforcement.

While many of these issues are not slated for discussion at the next round of talks in New Zealand - some countries want the substantive issues ironed out first - Canada has proposed an ambitious ACTA infrastructure that extends beyond a typical trade agreement.  In fact, when contrasted with the current WIPO functions - regular meetings, committees, technical assistance, a secretariat - ACTA would clearly replicate WIPO in many important ways.

Full post as published by Michael Geist on March 26, 2010 (boomark / email).