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Michael Geist, MichaelGeist.ca
March 19, 2010

New ACTA leaks have emerged this week that fill in the blanks about the remainder of the still-secret treaty. While earlier leaks provided extensive detail on the Internet and civil enforcement chapters, these latest leaks shed new light into the criminal enforcement section, the chapter on ACTA institutional issues, and international cooperation.

Criminal Enforcement

As described by KEI, the European Union has proposed language to require criminal penalties for “inciting, aiding and abetting” certain offenses, including “at least in cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale.” Willful copyright infringement includes instances that “have no direct or indirect motivation of financial gain.”

Institutional Arrangements

KEI reports that the Institutional Arrangement chapter – Chapter 5 of the ACTA text – is the second longest in the treaty. It includes the creation of an ACTA Oversight Committee that may have the power to amend the treaty itself. The leaked text reveals the following proposal:

The new ACTA Committee shall:

• Supervise the implementation of ACTA
• Consider further “elaboration” or “development” of the agreement
• Address “disputes that may arise regarding the interpretation or application” of ACTA
• Consider any other matter that may affect the operation of this agreement.

The Committee may:

• Establish ad hoc or standing committees, working groups, experts groups, or task forces to carry out various activities.
• Seek the advice of non-government persons or groups
• make recommendations regarding the implementation of ACTA,
• provide guidelines for implementing the agreement
• identify and monitor techniques of piracy and counterfeiting
• assist non-parties in assessing the benefits of accession,
• share information on best practices
• support international organizations
• take other such actions as the parties may decide.

The Committee is expected to met regularly, as well as in special sessions. The EU wants the meetings to be normally held in Geneva. ACTA “can extend invitations to governments who are candidates to join ACTA, to attend as observers.”

ACTA will also come with its own secretariat. KEI reports that:

The ACTA Secretariat may be provided by the country serving as the Chair, or be a permanent independent secretariat, possibly existing within another international body (such as UPOV within WIPO, or UNITAID within WHO). Korea wants the secretariat to be provided by the WTO. Morocco wants the secretariat connected to WIPO.

International Cooperation

Chapter 3 of ACTA provides new mechanisms for international cooperation and information sharing. The chapter includes provisions mandating law enforcement cooperation with respect to criminal investigation or prosecution as well as cooperation at the border. The EU would like “particular attention devoted to the circulation of IPR infringing goods detrimental to health and safety.”

It appears there is some disagreement between the EU and the US on the limits on the obligation to disclose confidential information. The U.S. proposes the following limiting language:

The Parties understand that obligations under this Chapter and Chapter 4 [Enforcement Practices] are subject to the domestic laws, policies, resource allocation and law enforcement priorities of each Party.

The EU’s proposed carve out is much more extensive:

Nothing in this Chapter and Chapter 4 shall require any Party to disclose confidential information which would be contrary to its laws, regulations, policies, legal practices and applicable international agreements and arrangements, including laws protecting investigative techniques, right of privacy or confidential information for law enforcement, or otherwise be contrary to the public interest, or would prejudice the legitimate commercial interests of particular enterprises, public or private.

The chapter also includes information sharing requirements including statistical data and national legislative and regulatory measures. Morocco would like to establish an observatory as as a tool for collecting information. Information sharing could also extend to law enforcement investigations. While the precise language is still being negotiated, the basic approach states:

Each party shall ensure, as appropriate and mutually agreed, within the limits of national legislation, policies, practices, and applicable international agreements and arrangements, that its competent authorities have the ability to provide the competent authorities of any other Party, either on request or on its own initiative, with information concerning enforcement of intellectual property right infringements.

In other words, widespread information sharing between countries as party of any investigation.

The international cooperation chapter also includes extensive provisions on capacity building and technical assistance. This is noteworthy since it (1) confirms the vision that developing countries will ultimately be pressured to join ACTA and (2) represents a counter to the developing country focus at WIPO. While WIPO has typically provided this assistance, the emergence of the development agenda has promoted a more balanced approach to technical assistance in developing countries. ACTA seeks to return technical assistance to an enforcement oriented approach.

As a starting point, ACTA states:

In order to facilitate the implementation of this Agreement or the accession thereto, Parties shall [endeavour to] provide, on request and on mutually agreed terms and conditions, assistance in capacity building and technical assistance in favour of developing country Parties to this Agreement…

Morocco has been particularly aggressive on the capacity building front, calling for a special fund to finance ACTA activities and listing many areas for technical assistance, including the promoting the culture of intellectual property.

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