Friday, March 26, 2010

Balkinization on ACTA

Margot Kaminski has a terrific review of ACTA over at the equally terrific Balkinization blog.

"The Anti-Counterfeiting Trade Agreement, a plurilateral agreement negotiated outside of the WTO's processes and protections, is the biggest set of new laws to hit international Intellectual Property. Many organizations have had serious concerns about the potential civil liberty and economic impact of ACTA. A draft text of ACTA has been leaked here. Many of these issues are clearly still up for debate. The biggest three issues may be the scope of criminal copyright infringement, the expansion of the US Digital Millenium Copyright Act (DMCA) internationally, and the creation of a new international institution (an ACTA "Committee") to deal with enforcement of ACTA. In short, ACTA is geared up to do almost exactly what I predicted in a "Recent Development" in YJIL last year (The Origins and Potential Impact of the Anti-Counterfeiting Trade Agreement (ACTA), 34 Yale J. Int’l L. 261 (2009)). It amps up IP protection and criminal sanctions, without respecting existing international institutional process and involving the interests of developing countries. Unsurprisingly, the US is an IP maximalist here, pushing for the strongest provisions. Singapore is a minimalist. Australia fluctuates depending on the provision. Japan appears to be on board with the US except for DMCA provisions, with which it heartily disagrees. What's at stake here? Institutional process and legitimacy (why is this taking place outside of the World Trade Organization (WTO) and WIPO?), and a rush to standardization on approaches to the Internet around the US standard, which arguably isn't the ideal. Privacy interests (implicated by data sharing with both other countries and with rights' holders) and liberty interests (why rush to the unreasonable US standard of criminalization?) are also very much at stake."
Read in full, particularly her list of 24 important things to note.

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