Testing American Diplomacy as to International IP Protection: What Will Become of the Anti-Counterfeiting Trade Agreement?
Providing for controversial rules, drafted during controversial negotiations, the Anti-Counterfeiting Trade Agreement is controversial indeed. The multilateral agreement between the United States, the European Community, Japan, Canada, Australia and other countries could be old history but for the combined effort of diplomacies to keep the project going. Started in 2006, the treaty that sets out a new legal framework to reinforce IP protection against counterfeiting products recently received support from 331 deputies at the European Parliament. The most optimistic commentators see the ACTA becoming law by the end of 2011, and Washington would be pressuring foreign governments to reinforce sanctions on IP infringements and accelerate the worldwide adoption process of the anti-counterfeiting treaty.
The Treaty provides for civil and criminal sanctions against “willful trademark counterfeiting or copyright or related piracy on a commercial scale.” One type of sanction is an Internet cut-off. Understandably, such a sanction is criticized for its harshness, and as internet cut-offs are advocated by countries like France, the sanction has fed European criticisms with strong arguments against the ACTA. The U.S. Ambassador to the European Union William Kennard claimed that the U.S. would follow a more lenient application of sanctions such as Internet cut-offs. However, contrary to the European Union or Canada, the U.S. is in support of mandatory statutory damages for violations of certain intellectual property rights. All parties advocate for sanctions against Internet service providers that refused to cooperate in the fight against online piracy, which, according to a French deputy, does not make much sense, as no one would press charges against a postman that would inadvertently deliver counterfeited products.
Some public interest groups, such as the Act-Up association or Essential Action of Washington D.C., strongly condemn the ACTA measures, which would clearly be in favor of multinationals as opposed to the consumers’ interests. And as many contest the adoption of those measures, a lot more still dispute the “lack of publication of a draft text, the speed at which negotiations were progressing, the rejection of established IP/trade fora to negotiate the agreement, and the exclusion of developing country and non-rights-holding stakeholder input […]” Emily Ayoob, The Anti-Counterfeiting Trade Agreement, 28 Cardozo Arts & Ent. L.J. 175 (2010). The adoption process is dim, at most. The ACTA was to remain secret but for successive drops of information by Wikileaks. The drafting parties many times refused to disclose the results of their multilateral negotiations, which gave way to worldwide criticism that the ACTA adoption process was anti-democratic.
Lately, Wikileaks revealed diplomatic missives from U.S. officials to their Spanish homologues, asking for increased protection against IP infringements. Some American diplomats also admitted a real push to the adoption of the Agreement. Their task is not an easy one- 331 European deputies expressed strong support of the ACTA, yet 294 disagreed as to its legitimacy, setting up the proposed adoption of the ACTA as a test of the efficiency of the American Diplomacy.