CONCERNS WITH APRIL 2010 ACTA TEXT
On April 21, 2010, after two years of pressure from information technology
companies, library associations, and consumer advocacy groups, the countries negotiating
the Anti-Counterfeiting Trade Agreement (ACTA) finally issued a “Consolidated Text
for Public Release.” The Consolidated Text appears largely consistent with drafts that
had been previously leaked, and thus contains the same problems as those drafts.
One major difference between the Consolidated Text and the leaked drafts is that
the Consolidated Text does not identify countries’ positions with respect to bracketed
language; that is, language for which there is not yet substantial agreement among the
negotiating countries. Much of the Consolidated Text remains in brackets. This means
that from the face of the Consolidated Text, it is unclear what language the U.S.
government supports. However, the leaked drafts did indicate what language the U.S.
government supported. These comments assume that the U.S. government currently
supports the same language it supported in the leaked drafts.
We note that much of the bracketed language proposed by the European Union
and other countries differs significantly from U.S. law. We will not comment here on
these provisions on the assumption that the U.S. government will not agree to provisions
so clearly inconsistent with U.S. law. We take the Office of the U.S. Trade
Representative at its word that it does not seek to change U.S. law through ACTA.
Nonetheless, we request clarification from the U.S. government on its intent to oppose
each inconsistent provision.
These comments will focus on the language in the Consolidated Text that we
believe the U.S. government has endorsed. While the United States probably could
comply with these provisions of the Consolidated Text without amending the U.S.
Copyright Act, these provisions are inconsistent with U.S. law in several significant,
troubling respects. The common thread of these incon