Ever since the Internet blackout to protest the Stop Online Piracy Act and the PROTECT IP Act numerous legislative proposals and treaties from the Anti-Counterfeiting Trade Agreement (ACTA)–, which was signed into law by the President last year, and is now being debated in Europe -- to cybersecurity related proposals having nothing whatsoever to do with protection of intellectual property, have been labeled the “new SOPA”. “SOPA’d” is reportedly even becoming a verb on the Hill (as in don’t get SOPA’d). While this may be an effective rallying cry to bring the agreement to the attention of recent IP activists, it obscures the truth about the agreement.
The debate surrounding ACTA in the EU is a prime example of this phenomena. IP skeptics have labeled ACTA “SOPA’s evil twin” but even opponents of ACTA, including journalists at Ars Technica who have followed the ACTA negotiations closely and have criticized the negotiating process and approach of ACTA, have publicly stated that the comparisons with SOPA and PROTECT IP are totally false. With all of the misinformation surrounding ACTA, we have taken some time to clear up often-repeated myths about the agreement.
Myth: ACTA was negotiated in secret
Fact: Many of the complaints about lack of transparency of the negotiating process stem from the fact that USTR shared drafts of negotiating texts with members of its Industry Trade Advisory Committees. Consultation with ITACs is a long standing part of US trade negotiation practices. Sixteen different ITACs exist to cover the panoply of manufacturing and services sectors in the United States. ITACs were established as a result of the International Trade Act of 1974, in order to ensure that the US Government consults with affected private sector commercial interests when formulating its trade policy. ITAC advisors are charged with providing advisory opinions to the USTR and Department of Commerce on how various trade agreements promote the economic interests of the United States, and whether particular proposals provide for equity and reciprocity for affected industry sectors. ITAC members are appointed jointly by the Secretary of Commerce and the USTR for a charter of two years, and must obtain a security clearance. U.S citizens, who are not full time employees of a governmental entity, and who represent a U.S. entity that trades internationally (or an association of such entities) are eligible to apply, without regard to political affiliation. Members are appointed based on individual knowledge and balance of industry representation in the ITACs.
In addition to the ITAC process, USTR also provided access to copies of negotiating texts (on the same terms as texts were provided to ITAC members) to interested members of the public representing consumers, and entities not currently serving on ITACs. At least 42 individuals representing a variety of interests including Public Knowledge, Center for Democracy and Technology, library groups, CCIA, CEA, Google, eBay, Dell and Intel participated in the discussions of the agreement through this additional process.
Finally, there was significant press coverage and publicly available information about the U.S negotiating position throughout the process.
• The partners involved in ACTA announced publicly that they had initiated preliminary discussions on ACTA in 2007.
• Media coverage emerged as early as 2008.
• A draft of proposed ACTA language was released in April 2010, while negotiations were still ongoing.
• A near-final text was then published in October 2010, with the final text being released in December 2010.
• Several countries conducted public consultations during these negotiations on the key elements proposed in ACTA, details of which were widely available and covered on line.
Myth: ACTA is an unprecedented way for the Executive Branch to enforce copyright protection in the U.S.
Fact: ACTA negotiations were initiated in response to Congressional calls for international cooperation to enhance global IP rights. Congress has passed legislation explicitly calling for the Executive Branch to work with other countries to enhance enforcement of intellectual property rights; the Prioritizing Resources and Organization of Intellectual Property Act of 2008, codified at 15 U.S.C. 8113(a), calls for the Executive Branch to develop and implement a plan aimed at “eliminating....international counterfeiting and infringement networks” and to work “ with other countries to establish international standards and policies for the effective protection and enforcement intellectual property rights.” ACTA is part of a long history of intellectual property trade agreements that were similarly concluded by successive Administrations. Most importantly, ACTA is entirely consistent and largely based upon existing U.S. law. It in no way exceeds what is already long-standing federal copyright law in the U.S. and required no changes to U.S law.
Myth: ACTA would tie Congress’ hands
Fact: As noted above, no new laws are needed to implement ACTA. According to the Department of State, the implementation of ACTA would rely on existing law, such as: the Copyright Act of 1976; the Lanham Act; and the Digital Millennium Copyright Act.
Moreover, ACTA – like any other international agreement- can be subject to future negotiations to accommodate Congress’ future actions. Harold Koh, legal adviser to the Department of State, stated in a letter to Senator Ron Wyden (D-OR):
“ACTA will impose obligations on the United States that are governed by international law. As in the case of other international agreements, it is possible that Congress could enact subsequent changes in U.S. law that are inconsistent with U.S. international obligations. If Congress were to enact a law that put the U.S. in breach of its ACTA obligations, the United States could, of course, seek to convince the other parties that the ACTA should be amended to make it consistent in U.S. law.”
Myth: ACTA mandates that ISPs play an active role in policing content.
Fact: ACTA requires participating nations to “promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party's law, preserving fundamental principles such as freedom of expression, fair process, and privacy.” While ISP involvement could be one measure that effectively addresses infringement, this is in no way a mandate for any particular action, and ACTA gives the member countries control over what constitutes “cooperative efforts within the business community.” A variety of other approaches could be used to meet the requirements of ACTA.