Latest Draft of Anti-Counterfeiting Trade Act Released

The latest, nearly final draft of the Anti-Counterfeiting Trade Agreement (ACTA) was released last week by the European Union after the final round of negotiations concluded on October 2 in Tokyo.

The secrecy of the negotiations has previously led to significant criticism of the process. Leaks of earlier drafts have also led to criticism over its terms, including the potential for limiting privacy and the weakening of the presumption of innocence of accused infringers.

The latest draft appears to tone down at least some of the provisions that were strongly criticized in earlier drafts. For example, a provision that previously required internet service providers to identify alleged infringers has been changed to provide a more balanced approach, and now requires a procedure that "avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy."

The public interest group Public Knowledge continues to criticise the secrecy of the proceedings and has voiced "grave concern" about the process and subversion of the democratic process by negotiating this as a "trade agreement" in secret.

Japan and the United States launched efforts to pass the USTA in 2006. They described their efforts as an "idea of a new plurilateral treaty to help in the fight against counterfeiting and piracy." Preliminary talks were conducted throughout 2006 and 2007 between Japan, the U.S., E.U., Canada, and Switzerland. In October 2007, each country announced it would negotiate ACTA, and they have been doing so behind closed doors since that time.

The USTR has previously described the objective of the negotiations as an attempt to create "a new, state-of-the art agreement to combat counterfeiting and piracy" that is "intended to assist in the efforts of governments around the world to more effectively combat the proliferation of counterfeit and pirated goods, which undermines legitimate trade and the sustainable development of the world economy, and in some cases contributes to organized crime and exposes American families to dangerous fake products."

The Office of the United States Trade Representative has posted the draft as well as an "ACTA Fact Sheet and Guide to Public Draft Text." A more thorough analysis analysis has also been posted by Sean Flynn, a law school professor with American University.