We present to you yet another guest post by Amlan Mohanty,a second year student at NLS Bangalore. His earlier contributions to the blog include very well written posts on ACTA and the proposed amendments to the Copyright Act.
The metaphorical ‘season-finale’ of the ACTA negotiations, after relentless calls for transparency and public consultation, revealed the much awaited official draft text of the agreement, generating significant issues for not only participating nations but also developing countries that have been curiously overlooked during the discussions. In this post, I intend to bring out the political and diplomatic factors for such exclusion, and the impact of the substantive provisions contained in the draft text on developing countries, including India.
I. THE POLITICAL ANGLE – WHY WERE DEVELOPING COUNTRIES EXCLUDED?
1. THE QUESTION OF ‘WHY’
The most obvious fact is that ACTA is a deliberate strategy by the United States to exclude developing countries from all negotiations, bypass the WIPO (I find it amusing that circumvention of the WIPO is acceptable, but ‘anti-circumvention’ is a favourite American slogan) and introduce DMCA-styled provisions into domestic legislations of several countries.
(i) Why ACTA when there exists a multilateral TRIPS Agreements?
Swaraj’s earlier post questioning the need for ACTA, is a good starting point to analyse the ‘why’, and drawing from his post, a few additional factors for such a move may be discussed. The increasing participation of developing countries and their demand for a ‘Development Agenda’ (see the recent declaration at the 4th IBSA Summit on April 15th, 2010) with initiatives such as an Access to Knowledge Treaty, has seemingly struck a nerve with the United States, causing a confrontation of sorts at the WIPO. In such an environment, reaching a consensus on intellectual property matters seems unlikely, given the opposing views and interests of the First and Third Worlds. Civil society organisations also seem to be backing the developing nations, siding with innovation, creativity and development instead of rigid enforcement and restrictive trade barriers.
2. THE QUESTION OF ‘HOW’
The motives for the secret treaty becoming fairly clear, the expected methods of propagation and how they plan to introduce substantive element of ACTA into domestic legislations of developing countries is interesting to examine.
(i) How will the ACTA be used internationally?
While participating nations have implicitly accepted the Agreement, albeit with reservations, as evidenced by the increasing number of square brackets (indicating qualifications/opposition/scepticism) in the draft text, the countries that have been left out of the negotiations will be the focus of the United States’ effort to spread ACTA as far wide as possible, including developing nations who are seeking advise and guidance from the developed world, on intellectual property matters. The scheme is rudimentary to say the least. By involving as few participants as possible in the negotiation stage and eliminating the scope for resistance, the US believes it can prepare a pre-negotiated, packaged agreement that it can ship off to developing countries, like relief food packets, to be devoured by their governments, unchanged, and in a form comfortable to the developed world. These nations will have absolutely no say in the scope, terms and language contained in the Agreement, once it has been decided upon by the participating nations (read – the developed world).
(ii) But is there anything concrete to suggest that the ACTA will be extended to developing countries?
As Michael Geist notes, the Agreement proposes technical assistance and capacity building measures in favour of developing countries (See Article 3.3 of the chapter on International Cooperation) which is a sure sign that they will be pressured into acceding to ACTA. Further, the Special 301 Report states that ‘ACTA is envisioned as a leadership effort among countries that will raise the international standard for IPR enforcement’ and the leaked discussion paper of the ACTA also suggests that there will be ‘special measures for developing countries in the initial phase’ . This leaves no doubt in my mind that the US plans to use pressure tactics against developing countries, coaxing them to sign on to the Agreement and introduce standards of enforcement and legal protection of intellectual property that best serves its own interests.
3. GOOD OR BAD MOVE?
(i) Underestimating the influence of developing countries
Deliberate strategy or otherwise, the larger question is whether the US is right in sidelining developing countries from such an important trade agreement. Personally, I am of the opinion that the United States has made a critical mistake in undervaluing the influence of developing nations in trade and intellectual property related agreements. They seem to have miscalculated the increasing importance of developing nations, especially the BRIC countries, within international organisations. The declining strength of the US and Europe in global institutions such as the WIPO is all to clear, and with countries such as Argentina, Brazil, China and India mustering strength at international fora and realising the need for liberal IP regimes, there appears to me to be a serious impediment in the plans of the United States to simply dole out membership invitations to ACTA and expect passive acceptance.
(ii) Ineffective arm-twisting political tool
It is contended that the ACTA will serve as an effective political tool at the hands of the United States to arm-twist developing nations and gain agreeable political positions from them in non-intellectual property agreements as well, if they refuse to sign on to the Agreement. My response again is that these nations are rapidly garnering economic and political clout and the US stands to lose just as much by engaging in such diplomatic strategies as the developing nations themselves. Can the US really threaten Brazil diplomatically if it refuses to accept the ACTA when there is an important ethanol trade relationship currently in existence? Can diplomatic ties between India and the US hinge on the ACTA alone when there are political issues like civil nuclear cooperation, where both are in equitable positions, with neither being able to call the shots on its own?
(iii) Least Developed Countries in various stages of TRIPS implementation
Continuing with the cynicism that pervades any comment on ACTA, I further bring into question the desirability of the ACTA since there are LDC’s that are currently still in the process of implementing TRIPS provisions. When these nations are still finding their feet and taking baby steps towards implementing flexible models of intellectual property management that best suits their domestic conditions, what is the need to thrust an overly-enthusiastic and frankly, superfluous IP enforcement mechanism on them?
II. THE SUBSTANTIVE ANGLE – PROVISIONS AND ITS POTENTIAL EFFECTS
Most importantly perhaps, the official draft text does not show any real substantive departure from the leaked version and throws up all the same issues and concerns that were previously expressed. Though there is still time to bring about changes in the text, with the agreement slated for conclusion only later this year, the lack of transparency, preventing public consultation and discussion until this point, is quite unfortunate. Although the substantive provisions have been discussed extensively, here, here and here, I will briefly go over the key provisions and changes made, to get a sense of what the ACTA actually contains.
(i) Three Strikes & Notice and Take-down
Of key importance is the provision relating to ‘Three Strikes’, a feature existing in American law, and brought to the forefront recently in relation to the Digital Economy Bill, which was passed by the British Parliament a few weeks ago. While the official text is unclear on whether it is a ‘requirement’ or a ‘recommendation’, the impact on developing countries is significant. If the final text positions the Three Strikes law as a requirement, developing countries signing-on to the treaty may be forced to implement a policy of disconnecting internet connections for repeated copyright violations, a seemingly draconian rule, and one that has not found much favour with governments of developed nations as well, other than France and now, Britain. Similarly, one must keep an eye on the provision relating to the notice-and-takedown procedure for copyright infringements, contained in the Agreement.
The importance of these provisions is magnified in light of the recent changes to the Information Technology Act in India, in relation to ISP liability, discussed in a guest post here. ACTA may require developing countries to overhaul their domestic legislations and introduce protective measures to keep up with ‘international standards’, which to me is a waste, not only of legislative time and energy spent in drafting the amendments, but also organisations and individuals who have worked tirelessly in these nations to keep out such provisions from domestic legislations.
(ii) Border Control Measures
The negotiators seem to have succeeded in limiting the potential harm that ACTA may have caused by allowing countries to exclude ‘small quantities of goods of a non-commercial nature contained in travelers’ personal luggage’ from ACTA enforcement. While that does deprive me of an opportunity to vent about how ridiculous it is that ACTA initially supported the right of custom officials to check iPods for infringing songs, it is indeed a laudable effort on the part of the negotiators. I can scarcely imagine China accepting such a provision. On a related note, Dr. Henning Große Ruse–Khan in a guest post, extensively discussed the impact of ACTA in creating trade barriers and is a must-read on this subject.
I had discussed the threat of DMCA-styled anti-circumvention provisions earlier and there does not seem to be any change in the text. This is important for the developing world and particularly in the Indian context since the Copyright Bill in my view, proposes a surprisingly flexible anti-circumvention model, with fair dealing rights secured, making liability dependent on intention to infringe and excluding distribution or manufacture of circumvention devices from its purview. This is at odds with the ACTA anti-circumvention section which has provisions against devices that can be used to circumvent, and also includes protection for access controls.
Thus, it is clear that the Anti-Counterfeiting Trade Agreement has the potential to impact developing countries in several ways and while changes to our domestic copyright law deserve our immediate attention, it would be useful to keep an eye on international developments relating to ACTA as well.