Trade Rep Says US Congress, Courts “Not Bound by ACTA”

Trade Rep Says US Congress, Courts “Not Bound by ACTA”

United States Trade Representative (USTR) Ron Kirk tells US Senate Finance Committee the Anti-Counterfeiting Trade Agreement (ACTA) was “drafted to reflect both the general principles and specific provisions of US law in the areas the agreement covers,” thus meaning US courts can still apply US law as is and stay compliant, and no constraints are placed on “Congress’ authority to change U.S. law.”

Thanks to testimony given by United States Trade Representative (USTR) Ron Kirk to a US Senate Finance Committee it seems one can now safely say that the Anti-Counterfeiting Trade Agreement (ACTA) really is all about reshaping the copyright world in our own image.

The ACTA’s stated purpose is to establish international standards for intellectual property rights enforcement, and it just so happens that not only are US laws already compliant with the agreement, but it also apparently “does not constrain Congress’ authority to change US law” as it sees fit.

“The ACTA was drafted to reflect both the general principles and specific provisions of U.S. law in the areas the agreement covers,” Ambassador Kirk said early last month at a hearing on the the 2011 Trade Agenda. “As a result, U.S. courts can continue to apply U.S. law and remain in conformity with the agreement. As noted above, ACTA does not constrain Congress’ authority to change U.S. law.”

The answer was given in response to a question from Senator Ron Wyden (D-OR) who pressed Kirk in a number of areas to determine how the ACTA will affect US citizens.

Kirk pointed out that “Article 6.2 of ACTA provides that “[p]rocedures adopted, maintained, or applied to implement the provisions of [Chapter II] shall be fair and equitable, and shall provide for the rights of all participants subject to such procedures to be appropriately protected.”

The discussion later turned to the topic of the Trans Pacific Partnership Agreement (TPP) whereby Sen Wyden hinted at the much-despised US “Operation in Our Sites” domain seizure campaign. He asked Kirk if the White House will make sure that any websites accused of infringing activities and in violation of TPP will be guaranteed “meaningful due process.”

“Transparency and due process are important aspects of the U.S. IP enforcement regime,” he said in response. “We are seeking commitments in the TPP that are fully consistent with these principles; in this regard, if there are any concerns with particular TPP partners, we would appreciate any suggestions that you or other members of Congress might have.”

Kirk adds that TPP will also ensure the “integrity of the Internet as well as the fundamental principle of free speech” because it too is modeled on US law.

Moreover, Kirk’s answer to all of Wyden’s concerns seem to be that the agreements will be okay for US citizens because they are based on US law, but what about the fairness to citizens of other countries mulling these agreements?

Back in 2009 Brazil and Pakistan criticized the US for negotiating a separate Anti-Counterfeiting Trade Agreement (ACTA) outside the World Intellectual Property Organization system.

In particular, Brazil criticized the “one size fits all” approach to piracy, noting that copyright violations do not take place in a vacuum, they are not “disconnected from concrete political and social variables.” It recommended anti-piracy strategies that are proportionally tailored to the specific social and technological realities of each developing country.

Pakistan took a more direct approach, expressing skepticism of piracy and counterfeiting statistics in general that, as we all know, our compiled by the very groups they are intended to benefit – copyright holders. It said they are “generally with little transparency regarding the raw data and the methodology used to derive those figures.” Without credible and impartial figures it said there is no way countries can even begin to build a higher standard of enforcement.

Pakistan also noted that oftentimes developing countries are “expected to enforce higher levels of IPRs, regardless of their socio-economic conditions and challenges.”

Moreover, even though Ambassador Kirk can gleefully tells Congress that anti-counterfeiting agreements like ACTA and TPP won’t require any changes to US law it does, inversely require changes by other signatories. The real question is then one of fairness.

If copyright holders decide to sell DVDs and CDs at a price well out of reach of citizens in a developing country is it really ethical to squander precious law enforcement resources to protect what is an inherently poor business model?

The real problem is likely Kirk’s insistence that it won’t hinder Congress’ ability to change US law. Once the agreement’s in place you can rest assured it will be cited if Congress tries to make any changes to US copyright law that would conflict with the ACTA, like decreasing the length of copyright protection from the current 70 years after the authors’ death.

Stay tuned.

jared@zeropaid.com