The Office of the United States Trade Representative (USTR) just released a draft of the Anti-Counterfeiting Trade Agreement (ACTA). After spending several years at the U.S. Patent & Trademark Office, advising USTR on the copyright-related provisions of many proposed and enacted trade agreements, my review of the draft ACTA text confirms, (as well as any draft can), that ACTA is precisely what USTR has said consistently during both the Bush and Obama Administrations: ACTA is an efficiency-enhancing effort that can be executed as an Executive Agreement because it will require no change--repeat, no change--in existing U.S. law.
Indeed, this is why I rarely write about, blog about, or closely follow the ACTA negotiations. ACTA is an important efficiency-enhancing effort intended to facilitate international trade. But--by definition--it will not address any of the most important unresolved questions about how to reconcile the benefits of enforceable copyrights and the benefits of the Internet.
To the contrary, in the ACTA negotiations, developed nations that have already joined and implemented all of the major multilateral IPR-related international treaties--like the Agreement on Trade Related Aspects of Intellectual Property Rights ("TRIPS"), the Berne Convention, and the WIPO Copyright Treaty--are trying to see whether they can agree on what an good implementation of these already-ratified, already-implemented treaties should require.
While such an agreement could further trade among developed nations, it would be even more beneficial to developing and least-developed nations. Most developed nations, including the U.S., already require their preferred trading partners to fully implement the leading international IPR treaties, but each such developed nation now has differing ideas what an "good" implementation of these treaties requires. As a result, any country that wants to increase trade with developed nations in the Americas, Europe, and Asian must now separately negotiate with many nations about the efficacy of its implementation of existing IPR treaties, and it may have to revise its IPR laws repeatedly.
ACTA seeks to reduce or eliminate the resulting delay and duplication of effort. In effect, ACTA seeks to answer the following question: Given that many developed nations already require their preferred trading partners to complete a "good" implementation of the existing IPR treaties, shouldn't they try to reach as least broad agreement on what a "good" implementation of existing IPR treaties requires? If so, then any nation interested in updating its IPR laws in order to better protect its own creators and improve its trade relations could know what to do in order to facilitate trade with many of the world's most attractive trading partners. Consequently, developed nations that already incorporate support for IPR protections into their international-trade strategies could promote trade, reduce waste, avoid petty disputes, and better promote improved IPR protections if they could agree on what a really good implementation of the existing international IPR treaties should require. This is, perhaps, the critical benefit that ACTA seeks to achieve.
This is why the structure and the text of ACTA so closely resemble the structure and text of the IPR Chapter of many existing bilateral and multilateral U.S. Free Trade Agreements ("FTA")--none of which required the U.S. to amend its existing IPR laws. Those similarities are no coincidence. In effect, ACTA attempts to reach at least a general consensus on what the IPR chapters that many developed nations already incorporate into their trade agreements ought to contain.
Nevertheless, while developed-world IPR laws are so generally similar as to permit such consensus, they are not identical. Consequently, the ACTA negotiators must craft language specific enough to provide precise guidance, (as the IPR chapter of a developed-world trade agreement would today), while accommodating some of the differences in the national laws of developed, IPR-exporting nations--each of which is quite convinced that its laws already reflect a "really good" implementation of the existing multinational IPR treaties.
This is why the Internet teapot-tempest over ACTA merely confirms that USTR should be strongly commended for its longstanding decision to pursue ACTA as an Executive Agreement. For precisely the reasons just mentioned, the language of ACTA will almost certainly closely, but not precisely, track the language of the IPR Chapters in those many existing U.S. FTAs. This could have raised legitimate--as opposed to contrived--concerns that ACTA might change to U.S. law. But by negotiating ACTA as an Executive Agreement, USTR eliminated all such legitimate concerns. By definition, an Executive Agreement cannot require any change in existing U.S. law.
Moreover, by negotiating ACTA as an Executive Agreement, USTR not only eliminated any legitimate domestic concerns about ACTA changing U.S. law, it also put all other nations participating in the ACTA negotiations on notice: if the U.S. agrees to particular language, then that is because it has concluded that its existing domestic laws already implement that language. Therefore, should the ACTA negotiations conclude successfully, no co-party to ACTA can argue, credibly, that it could possibly have thought that existing U.S. law failed to implement the Agreement.
These observations are subject to a caveat: the released draft of ACTA is an early-stage draft consisting mostly of bracketed counter-proposals. Multiparty negotiations among many global leaders in international trade never proceed quickly. Nevertheless, the released draft suffices to confirm that ACTA is precisely what USTR has said it is throughout the past two Administrations, and that USTR should be commended for providing both domestic and international clarity by pursuing it as an Executive Agreement.
Finally, a word about ACTA and "secrecy." Negotiating drafts of ACTA have been no more and no less "secret" than negotiating drafts of any other proposed U.S. trade agreement negotiated in the last few decades. And such "secrecy" is perfectly sensible: negotiating nations do not published their negotiating drafts and strategies for the many of the same reasons that poker players do not "publish" the contents of their hands during a game--"transparency" is good; crippling your own negotiators is not. Nor is the resulting "secrecy" that secret: Any Internet reporter who wanted to review an earlier draft of ACTA would have had to do little more than sign a simpler version of the sort of nondisclosure agreement (NDA) that gadget reporters routinely sign in order to get an early look at the latest iWidget.
I may have more to say later about the shrill, dishonest, juvenile histrionics that have passed for most Internet "commentary" on ACTA. For now, I need only congratulate the shriekers for the success of their latest campaign to convince even more federal officials that most Internet commentary on almost matters relating to intellectual property rights, (other than those that protect technology companies or open-source software), will tend to consist of shrill, dishonest, juvenile histrionics.
Indeed, the histronics over ACTA recall the histrionic wailing that filled the Internet during the lead-up to the Supreme Court decision in Grokster. Back then, many of the same groups and individuals now shrieking about ACTA were shrieking that holding the most blatant commercial copyright pirates on the Internet liable for the intended consequences of their own actions would crush innovation and outlaw, (to cite but a few examples), iPods, transistors, Legos, broadcast radio, The New York Times, and--worsf of all--Silly Putty. Today's ACTA histrionics seem equally rational, balanced, informed, and thoughtful.
