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U.S. on ACTA: Full Steam Ahead

By Michael Geist

This has been a remarkable two weeks for those tracking the Anti-Counterfeiting Trade Agreement, as the proposed treaty has begun to attract attention at the highest political levels.  The European Union has undergone the greatest change.  First, the identification of the transparency holdouts led to a unanimous EU position favouring release of the text.  This week, EC Commissioner for Trade Karel De Gucht stated: "I will see to it that at the next negotiating round, in April, the Commission will vigorously push its negotiating partners to agree to release the text."  This leaves the U.S., South Korea, and Singapore as the remaining barriers to full transparency.  Second, this week's European Parliament resolution places the European Commission on the defensive with respect to ACTA.  The negotiations will continue, but Europe clearly faces internal challenges in the ACTA process.

The U.S. response to the European developments came yesterday, as President Obama reiterated his support for finishing ACTA.  In comments on IP enforcement, Obama discussed the need to "aggressively protect" IP, pointing specifically to ACTA.  The reference to ACTA was clearly meant to send a strong signal that the U.S. intends to continue its push for a treaty. Indeed, the U.S. has not changed its position on anything with respect to ACTA - it is one of the lone holdouts on the issue of transparency and its negotiating position on the text itself has not moved much through almost two years of negotiations.  Consider the Civil Enforcement chapter, which was first proposed by the U.S. in July 2008 at the second round of ACTA talks in Washington.  The recent leak of the latest version of the chapter shows that practically nothing has changed:


Article 2.1 Availability of Civil Procedures
1. No Change
2. No Change

Article 2.2 Damages
1. No Change
2. No Change
3. Wording Change:
 

Original	New
Each Party shall provide that the right holders shall have the right to choose the remedy in paragraph 2 as an alternative to the remedy in paragraph 1.	Each Party shall provide that the right holder shall have the right to choose the system in paragraph 2 as an alternative to the damages in paragraph 1.

4. Change – transposed words

Original

New

Each Party shall also provide that its judicial authorities, [Option US: at least in proceedings concerning copyright or related rights infringement or willful trademark counterfeiting] shall have the authority to order, [Option US: except in exceptional circumstances][Option J: in appropriate cases], that the  prevailing party be awarded payment by the losing party of reasonable attorney's fees.

Each Party [US/J:shall] also provide that its [US/J: judicial] authorities, [US/Can/Mor/MX/NZ: except in exceptional circumstances], [US/Can/Aus/Mor: {US/Aus/Mor: at least }in proceedings concerning copyright or related rights infringement or willful trademark counterfeiting,] shall have the authority to order, [J/Can/Aus/NZ: in appropriate cases], that the prevailing party be awarded payment by the losing party of [US/J: reasonable] attorney's fees

Article 2.3 Other Remedies
1. No Change
2. No Change
3. No Change

Article 2.4 Information related to Infringement

Change – Addition of words

Original	New
Each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to order the infringer to provide, for the purpose of collecting evidence…	Each Party shall provide that in civil judicial proceedings concerning the enforcement of [US/J: intellectual property rights], its judicial authorities shall have the authority upon a justified request of the right holder, to order the infringer to provide, [US/J; for the purpose of collecting evidence]…

Article 2.5 Provisional Measures
1. No Change
2. No Change
3. No Change

The U.S. position for the moment appears closer to "take it or leave it" with the bet that many ACTA partners will see little political alternative but to take it.

Full post as published by Michael Geist on March 12, 2010 (boomark / email).