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Multi-lateral treaties: ACTA, TTIP, TTP

The 2011 treaty ACTA - for Anti-Counterfeiting Trade Agreement - was only the first of a number of attempts to negotiate multi-lateral treaties that would bind signatory nations to a new international legal framework for the enforcement of intellectual property rights. Other examples include the Transatlantic Trade and Investment Partnership (TTIP, also known as TAFTA, for Transatlantic Free Trade Area), a proposed EU-US treaty that had its third round of negotiations in December 2013, and the Trans-Pacific Partnership (TPP), a proposed trade agreement under negotiation by Australia, New Zealand, the US, and a group of Asian and South American nations.

There are two kinds of objections to these treaties. The first is the corrosive secrecy and lack of transparency with which they are drafted and negotiated, precluding debate and overriding the public at the national level. The intellectual property provisions of TTP, for example, are known only because they were published by Wikileaks in November 2013. The second is that by their nature international treaties are stiff and inflexible instruments. In the case of the EU, ratification effectively cedes control over all intellectual property policy in all 28 member states. ACTA would have and TTIP will bind member states to provisions that, when enshrined in legislation at the national level with similar provisions, such as the Digital Economy Act, are controversial and under review.

 Background

ACTA was formally published in April 2011, signed by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea, the US, and the EU. Six countries had to ratify the agreement before it would come into force. Only one country has ratified it: Japan.

In January 2012, the EU signed (but did not ratify) the treaty. In response, the European Parliament's rapporteur for ACTA, Kader Arif, resigned in protest, calling the negotiations a "masquerade". The European Parliament voted in July 2012 to reject ACTA after it provoked street protests across Europe. Opponents argued that ACTA would have undermined rights such as freedom of expression and privacy, and complained that it was negotiated in secret discussions from which civil society, developing countries, the public, and even experts were excluded.

ACTA's proponents argued that the treaty is permissive rather than prescriptive. It allows countries to hold third-party intermediaries liable for copyright infringement, set a low threshold for criminal sanctions, and increase enforcement powers. In a detailed analysis of ACTA, Canadian intellectual property scholar Michael Geist argued, however, that, "Experience with other treaties indicates that flexible, permissive language is gradually transformed into mandatory, best-practice language." Geist also argued that ACTA would override carefully negotiated safeguards built into the 1994 TRIPS agreement and change the anti-circumvention rules enshrined in current WIPO treaties. Finally, the exclusion from negotiations of developing countries, which are often the source of counterfeit goods, means that ACTA is likely to be ineffective in its stated purpose. The history of ACTA is thoroughly studied in Monica Horten's book, A Copyright Masquerade (http://zedbooks.co.uk/ebooks/&bid=9781780326436).

Talks began for TTIP in July 2013 with a view to completing negotiations and finalising the treaty by the end of 2014. TTIP's draft text has not been published, and its exact intellectual property provisions are unknown. They are, however, thought to be similar to those of TPP, which are known because Wikileaks published the draft intellectual property chapter in November 2013. EFF written that the leaked TPP text "confirms long-standing suspicions about the harm the agreement could do to users’ rights and a free and open Internet. From locking in excessive copyright term limits to further entrenching failed policies that give legal teeth to Digital Rights Management (DRM) tools, the TPP text we’ve seen today reflects a terrible but unsurprising truth: an agreement negotiated in near-total secrecy, including corporations but excluding the public, comes out as an anti-user wish list of industry-friendly policies."

 ORG's view

The Open Rights Group supports an open, evidence-based reappraisal of intellectual property policy, something that has been sorely lacking in the formulation of intellectual property laws at both the international (TTP, ACTA) and national (Digital Economy Act 2010) levels. The UK Intellectual Property Office, writing in 2011, admitted the lack of "reliable, credible, and comparable data on the scope and scale of IP crime".

ORG opposed ACTA on the basis that it imposes constraints on fundamental values such as freedom of expression and the right to privacy and favours the desires of major content and patent owners at the expense of the needs of the public, undermining more transparent and inclusive intellectual property bodies such as the World Trade Organisation and the World Intellectual Property Organisation.

ORG's main concerns about TTIP are that the treaty will turn ISPs into private law enforcement; that the treaty will up-end the EU's data protection and privacy principles; and that the treaty will provide a mechanism allowing foreign investors to sue states that pass regulations that could inhibit their profits. ORG also objects to the continuing lack of accountability and transparency regarding the treaty negotiations and the lack of public input into the provisions they contain.

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