Intellectual Property: Draft Anti-Counterfeiting Trade Agreement

On Wednesday, April 21, the European Commission posted for the first time a draft of the Anti-Counterfeiting Trade Agreement (ACTA) for public review and comment. The draft, which the EC termed a "PUBLIC Predecisional/Deliberative Draft," is the product of a multinational process going back to 2006. Currently, Australia, Canada, the European Union and its 27 member states, Japan, Mexico, Morocco, New Zealand, Republic of Korea, Singapore, Switzerland and the United States all have participated in the negotiations and drafting of ACTA.

The Office of the U.S. Trade Representative has published a summary a summaryof ACTA's principal provisions. In brief, ACTA includes provisions for civil and criminal enforcement, as well as border measures by customs authorities, in respect of intellectual property rights, international cooperation (including information-sharing, capacity-building, and technical assistance), enforcement practices, and oversight of implementation by an ACTA Oversight Council (or Committee - the text leaves open both possibilities).

Although parties to the negotiations have been posting scheduled agendas and post-meeting summaries of discussions, civil liberties organizations such as the Electronic Frontier Foundation had criticized the overall process for a lack of transparency, particularly (in the EFF's view) in excluding "civil society and developing nations," as well as extension of the potential scope of ACTA to "Internet distribution and information technology”. In addition, a major Internet service provider (ISP) association, the European Internet Service Providers Association, has already criticized the published draft for its reported requirement that ISPs will be required to monitor Internet users' traffic to spot unlawful file-sharing of copyrighted material.