It’s that time again. Anti-Counterfeiting Trade Agreement (“ACTA”) negotiators are gathering again, this time in South Korea. ACTA has been off the radar for a little while now, overshadowed by other IP developments. But now we’re up to the 6th round of negotiations, and, it would seem, interesting times await: according to the agenda that’s been published, the negotiators are expected to look at text on internet enforcement issues. As the select group – the US, the European Union, Japan, Switzerland New Zealand, Canada, Mexico, Australia, South Korea, and Singapore – meet again, it’s worth pointing out, again, the problems with these negotiations. Two broad issues: process, and substance. So it’s time to remind everyone what’s at stake here.

In process terms, the overwhelming problem is the lack of transparency. Text hasn’t been released, except to a select group of the usual suspects (the US’ usual advisory group on IP, made up of the IP-owning industries) and, more recently, a slightly broader group including that includes technology companies like eBay, Verizon, and Google, Inc.; the Consumer Electronics Association; and civil society groups Public Knowledge and the Center for Democracy and Technology. We’ve had, after a lot of pushing and complaining, some limited ‘summaries’ released too, although in an area this technical, the devil is always in the details.

USTR and others argue that refusing to release the text is normal necessary to facilitate negotiations. No doubt it will be easier to reach without thousands of eyes scrutinizing every detail of the text. However, what they’re saying too is “trust us, we’ll reach a fair result even without your input; we know what we’re doing”. Given texts that have emerged from other negotiations (me, I’m thinking of the US-Australia Free Trade Agreement), it’s hard to have that trust.

You would think it would have sunk home by now. In simple terms: it is the fact that text hasn’t been released which has generated all kinds of wild claims and paranoia. If we could see the text, we wouldn’t have to speculate about customs seizing iPods at the border. I can’t count the number of events I’ve been at, or commentary I’ve read, where representatives of IP owners or IP-oriented industries have worried that IP has an image problem, and wondered aloud how to counter that; how to start selling the ‘positive side’ of IP. WIPO have been worried about it; Alison Brimelouw, European Patent Office President has mentioned the issue. And they’re right to be concerned: copyright (and to some extent other IP systems) relies on voluntary compliance to work, which means people really need to believe in the system. How do we make people believe in the copyright system? Here’s a tip, for free. Secretive negotiations don’t help. They just support the perception that IP is one big industry-assistance scheme that does little for the public or creators. Fair or unfair, perceptions are important here.

There are other problems, too, which I’ve discussed elsewhere. The problem of multiple forums for example. As well as the ACTA, IP enforcement is being discussed in the World Trade Organization, the World Intellectual Property Organization, the World Customs Union, and many bilateral trade agreements. Surely this is counter-productive? What is more important for government – actually encouraging innovation, or box-ticking on their customs processes to check compliance with the multiple different obligations in different treaties? What would creators prefer money be spent on – grants and assistance for research and artistic endeavour – or yet more forms and processes and institutions and meetings about counterfeiting?

So much for process. What about substance? Well, of course, here we get a lot more shady, because we don’t have text. But, basing our speculations on past US FTAs (we know the USTR treat them as a model), here’s a quick list of things I don’t want to see in an ACTA (personally I’d rather not see an ACTA – I’d rather this was handled through the normal processes rather than select group negotiations, but hey, if we were going to have one, there are some things I’d really rather not see):

  1. Patent. We are not ready to require customs systems around the world deal with alleged “patent counterfeits”. The EU stops alleged patent infringements at the border, and so far that’s stopped deliveries of generic medicines, far as I can tell;
  2. Any rules that contemplate anyone other than judges deciding about seizure and destruction of IP infringements or equipment used to make them. Too many hard issues: things like proportionality of seizure/destruction (seize a $4000 device over a couple of proven infringements?)
  3. Statutory damages. Don’t. just don’t. They’re inevitably unjust and make individuals pay for the sins of many. Scapegoating is just nasty.
  4. More and more attempts to extend criminal liability to more things. Can we just focus on catching the real criminals, who are already more than covered by provisions like the TRIPS provisions?
  5. Any language that tries to dictate what penalties countries will actually impose on infringers (as opposed to what penalties countries will have in their law). I know it’s tempting, because we had trouble with China, and I know it’s frustrating to have laws on the books that aren’t enforced, but stepping in to the courtroom and telling judges what to do is not the way to get over that frustration, really!
  6. Three strikes laws. I don’t think we’ll see them in text – too big a move for too many countries – but let’s not go there, ok? Make a few democratically elected governments do it first before trying to impose it by fiat.

That’s really just a taste of some of the issues. There’s more in my earlier commentary.

So there you have it. My 2c (or perhaps $2) worth. ACTA. A counterproductive effort in secret negotiations that, as far as I can tell, is only generating bad will and, I strongly suspect, will do little to actually address counterfeiting. We really don’t need new rules here. If the same effort went into tracking actual bad guys as is going into these negotiations, I suspect it would make much more difference