Summary of the copyright trade agreement

The participants in the proposed Anti-counterfeiting Trade Agreement (ACTA)—one of the few plurilateral (non-regional) trade agreements ever negotiated outside the multilateral trade framework of GATT and WTO—have lifted the veil of secrecy surrounding their negotiations just a little by publishing a "Summary of key elements under discussion".

Although apparently intended to calm civil-liberties concerns, the new ACTA 'summary' does not offer any comfort about e.g. the RIAA's proposals to the U.S. government that would shift the burden of enforcement of their IP rights onto the taxpayer, including taxpayers in developing countries.

In fact, it contains little more than an explanation of the chapter headings in what must be, already, a fairly complete draft of the proposed ACTA treaty. It provides no details about the content of the provisions and leaves a lot of questions still open about the membership, scope and implementation of the agreement.

In the introduction to the summary, the negotiating parties discuss the objectives of the proposed agreement in a little more detail than in their previous statements in a way that seems designed to comfort consumers:

"The intended focus is on counterfeiting and piracy activities that significantly affect commercial interests, rather than on the activities of ordinary citizens. ACTA is not intended to interfere with a signatory’s ability to respect its citizens’ fundamental rights and civil liberties, and will be consistent with the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and will respect the Declaration on TRIPS and Public Health" Extract from DFAT's Summary of Key Elements Under Discussion

But, if this is so, why do governments need to keep the talks under wraps? This negotiation remains a blot on the public-diplomacy records of trade ministries who are participating. It may, for all I know, be a trade liberalizing treaty that strikes a sensible balance between open markets and property rights. But the narrow range of parties to the negotiation, the prospect that the agreement will be designed to add further value to the rents of copyright owners by changes to national criminal laws (i.e. at taxpayers' expense), and the reluctance of governments to be open about the provisions of the proposed treaty give no reason to think so.

My own unease about this treaty is only increased by the omission of any reference to WTO principles and objectives such as 'non-discrimination', 'transparency', and least-burdensome regulation from the summary.

Considering its antecedents, there is every reason to fear that this agreement will repeat—or even extend—the error of the TRIPS agreement in trying to secure bigger rents for countries that are exporters of IP at the expense of economic efficiency and the welfare of all others under the guise of 'trade facilitation' or, in the case of ACTA, under the guise of 'criminal law enforcement'.

"As compared with the outcome of the market access negotiations, the TRIPS amounts described above are big money. Comparing (Table 3) the net gains from changed patent obligations with the gains from Uruguay Round liberalization of tariffs on industrial goods by all WTO Members shows that TRIPS-patents are worth 13 times more to the US than is the Uruguay Round tariff package on industrial goods. On the other side of the ledger, for the three developing countries for which both the World Bank and the Harrison et. al estimates are available, TRIPS-patents bring increased claims against them several times larger than what they will gain from Uruguay Round tariff liberalization on industrial goods. For Republic of Korea, the TRIPS obligation is 18 times as large as her gain."

Extract from a World Bank study: 'The Doha Agenda and Development: a view from the Uruguay Round' by Mike Finger.

In summary, ACTA still looks to be another zero-sum game. Inimical to the objectives of the multilateral trade framework, economically inefficient, promoting an exaggerated protection of intellectual property rights and bound to cause friction between WTO members. Perhaps that's why the only 'developing' countries among the current ACTA negotiators are Mexico and Morocco.

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