As attention gradually shifts from the Anti-Counterfeiting Trade Agreement (ACTA) to the Trans Pacific Partnership (TPP) agreement, Kimberlee Weatherall at the University of Queensland, Australia, has had the excellent idea of looking at them as part of a larger trend in a study entitled “Intellectual Property in ACTA and the TPP: Lessons Not Learned“:

In this paper I am interested in what ACTA as it emerged from the negotiating process has to teach us about the negotiation of international agreements in IP, and in whether we can see any evidence that those lessons have been learned or are being
applied to the TPP negotiations.

What emerges is a fascinating picture of good news and bad news. For example, the bad news is that ACTA goes well beyond the enforcement provisions of the previous benchmark trade agreement TRIPS:

The provisions of ACTA are far more elaborated than any other existing multilateral agreement. The obligations included in ACTA extend considerably beyond TRIPS as the latter relates to enforcement. Examples of TRIPS-plus provisions include the obligations to provide for an account of profits as a remedy for IP infringement, to provide statutory or at least additional damages and legal costs, obligations on an infringer or alleged infringer to provide information about the origin and distribution network of the infringing goods, powers for customs authorities to provide right holders with information where goods have been seized at the border, broader criminal provisions including secondary criminal liability for aiding and abetting activities and liability of corporate persons, an optional camcording offence, and provisions on enforcement in the digital environment that have no equivalent in TRIPS and include detail not found in the relevant WIPO Treaties.

But the good news is that ACTA was originally much worse, and lacked many crucial safeguards:

However, the final text of ACTA concluded in December 2010 is very different from the early leaked texts that started to emerge in January 2010. The Final Text retreats from some of earlier proposals for even stronger and less qualified IP enforcement measures.

Overall, the finalised version of the ACTA introduced a series of safeguards, exceptions and protections for users and parties to litigation, backed away from significant strengthening of the enforcement apparatus in relation to patents and geographical indications; left the scope of border measures in the hands of individual countries, almost completely abandoned any attempt to dictate the way that enforcement will occur in the digital environment or the ways that intermediaries in that environment will be regulated, and significantly watered down the provisions on criminal enforcement. In all these areas, the countries who have, historically, been the most enthusiastic proponents of strong IP law and strong IP enforcement, could not reach agreement.

Weatherall draws an important conclusion from this retreat:

One way to see ACTA, then, is as an exemplar of the maximum level of enforcement that will draw support from these important countries, and, hence, as a maximum set of provisions that could conceivably be multilateralised in some future global negotiations, even before the interests of large developing countries and the BRIC countries are taken into account.

In a sense, bad as ACTA is, it represents the worst that might receive support from other nations around the world, particularly the key ones who were not involved in ACTA – Brazil, Russia, India and China.

And yet despite this failure to get its more extreme proposals accepted by the other participants during the ACTA negotiations, the US does not seem to have drawn the same conclusion. Based on the few leaked documents we have from the secretive TPP talks, Weatherall notes:

Assuming these leaked documents are genuine, they demonstrate a divide between the largely TRIPS-consistent, broad and general suggestions of New Zealand and Chile on the one hand, and very detailed US proposals which are not only TRIPS-plus, but go further than the chapters included in previous US trade agreements and further, notably, than ACTA.

Further, the TPP draft produced by the US includes none of the safeguards for users and parties to litigation which were negotiated into the ACTA, such as the inclusion of a reference to TRIPS Articles 7 and 8, allowance for the protection of privacy, a requirement that procedures be fair, equitable, and proportionate, and that measures not create barriers to legitimate trade.

For TPP, then, the US is trying to rewind the clock on the ACTA negotiations, and start once more from a negotiating position that even fellow ACTA participants thought went too far.

In sum, the US is treating neither its existing FTAs which the US has agreed with parties involved in the TPP negotiations, nor its past negotiations with Congress in the form of the May 10, 2007 Agreement, nor ACTA, as a ceiling for the IP provisions it will seek to include in the TPP. Rather, the US appears to be treating past FTAs and ACTA as a starting point on which to build further and stronger IP-related obligations. The wisdom of this approach is questionable, to say the least.

Once again, that’s both good news and bad news. It’s good news that the US may be setting itself up for yet another climbdown in this area, as happened with ACTA, if the other nations simply refuse to accept those positions. That would mean that the TPP agreement won’t be as bad as it looks in the leaks.

The bad news is that the US clearly does not currently accept that there will ever be a “ceiling” or “maximum level of enforcement” as Weatherall puts it. Put another way, however few counterbalancing rights the public has now in the realm of intellectual monopolies, the US aims to reduce them further.

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