Will proposed treaty make border agents copyright cops?

Document posted to Wikileaks indicates trend toward IP crackdown

An Anti-Counterfeiting Trade Agreement (ACTA) under quiet negotiation by several countries including the U.S and Canada is raising concern in some quarters after a leaked document, purportedly offering more details on the nascent agreement, was posted on the Internet.

The document, titled "Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement" (download PDF), was posted last week by the Wikileaks whistle-blower Web site. The four-page document was apparently quietly provided to select lobbyists in the "intellectual property industry" late last year -- but not, apparently, to public-interest organizations, according to Wikileaks.

Plans for the trade agreement were announced last October by the office of the U.S. Trade Representative (USTR). At that time, the agreement was described by the USTR as a "major" step in the fight against the global piracy and counterfeiting of intellectual property.

The countries that have been identified as engaged in ACTA discussions are the U.S., Canada, the 27 member states of the European Union, Japan, Korea, Mexico, New Zealand, and Switzerland. In a fact sheet (download PDF) accompanying the announcement, the USTR said that ACTA would focus on increasing international cooperation and information sharing around IP protection, the creation of stronger and standard enforcement mechanisms, and the establishment of a more "effective" legal framework for combating piracy and counterfeiting. Among the legal provisions being considered are those for criminal enforcement, "border measures" and for Internet distribution of IP.

The discussion paper published by Wikileaks basically offers a more detailed glimpse at some of the provisions in ACTA that are reportedly being negotiated by participating countries, and has led to considerable concern and speculation in several media outlets, especially in Canada.

According to the leaked document, the provisions being negotiated under ACTA are being driven by the need to curb global piracy and counterfeiting of products protected by intellectual property rights (IPR) and include the following:

  • Criminal enforcement measures that allow law enforcement to take action against alleged IPR infringers and gives them the authority to seize and destroy IP infringing goods without complaint by rights holders.
  • Border enforcement measures that include the authority for customs officials to seize and destroy IP infringing goods
  • "Ex-officio" authority for customs officials to suspend import or export of suspected IP rights infringing products
  • Civil enforcement powers that will allow law enforcement to conduct preliminary searches.
  • Legal safeguards for Internet Service Providers to encourage them to remove copyright infringing material and to provide information on those doing so to the rights holders.

If the treaty is adopted as proposed, such provisions would impose "a strong, top-down enforcement regime, with new cooperation requirements upon internet service providers," including the requirement for them to disclose customer information on request, Wikileaks noted. The proposal also bans "anti-circumvention" measures which may affect online anonymity systems, Wikileaks noted.

Importantly, the treaty -- if adopted as proposed -- also has the potential to turn customs and border patrol agents into copyright cops, said Caleb Sullivan, an attorney specializing in international trade and customs law with Becker & Poliakoff, a Florida law firm.

U.S Customs and border patrol officials have already been carrying out searches of laptops and other electronic devices belonging to travelers at U.S borders without any reasonable cause or suspicion, Sullivan said. If ACTA is adopted, it will give these officials a much broader pretext for carrying out such searches, he cautioned. "If the rules are established within this international treaty it would provide further justification from them to engage in this type of behavior," he continued, "and it won't be just at U.S. borders that travelers could be subjected to such searches, but in other countries as well."

ACTA as proposed will also "create new forms of legal liability for third parties over infringements of others," and it will lower existing standards for secondary liability, warned IP Justice, a San Francisco-based civil rights group focused on intellectual property laws. In a white paper posted in response to the ACTA document posted by Wikileaks, IP Justice said that ACTA could end up criminalizing non-commercial copyright infringements and endanger legal due process rights of individuals.

The group also lamented the apparent lack of transparency surrounding ACTA up to this point. "Negotiations are going on in secret between intellectual property industry lobbyists and the trade offices of wealthy countries," the group said in its white paper. "The lack of transparency in the process to negotiate the global trade pact for an information society is concerning," it said.

Responding to a request for comment, a spokeswoman from the USTR pointed to the fact sheet posted by the agency last October. She added that the agency could not comment on the contents of an "allegedly leaked document."

Copyright © 2008 IDG Communications, Inc.

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