December 1, 2009 | By Richard Esguerra

Senator Bayh Responds on ACTA

Senator Evan Bayh recently responded to a constituent's concerns about the Anti-Counterfeiting Trade Agreement (ACTA). Sadly, Senator Bayh's letter is troubling and frustrating. He echoes the USTR's misleading conflation of "counterfeiting" and "copyright infringement," doesn't address the draconian Internet provisions, and, worst of all, fails to acknowledge the most egregious problem altogether -- that ACTA is being negotiated in secret and being hidden from Congress and the public.

Let's take a look at parts of Senator Bayh's response in detail.

Senator Bayh: I support a balanced approach to international trade that ensures equal treatment for U.S. goods and services. In other words, I believe we must pursue policies that advance the economic well-being of America's businesses and working families while holding our trading partners accountable.

Unfortunately, ACTA doesn't squarely advance those objectives. It's a mistake to characterize ACTA as a pure attempt to get "other countries" to do something beneficial for the US. ACTA will also have an impact stateside. Leaked documents indicate that ACTA may require Online Service Providers to adopt policies that undermine the level of protection they currently have in the U.S. against liability for things done by Internet users using their networks. And since ACTA intends to set new global norms, it is likely to increase Internet intermediary liability worldwide, damaging the future growth of the digital technology industry in the US and beyond at the behest of the entertainment industry.

And as if that wasn't enough to cast the benefits of ACTA in doubt, leaked documents reveal that ACTA may require Online Service Providers to adopt "three strikes" policies that kick families off the Internet after being accused of copyright infringement, which satisfies only the misguided whims of Hollywood's anti-Internet crusade.

Senator Bayh: In the face of expanding commerce, we cannot lose sight of our fundamental responsibility - protecting Americans from imports that pose significant health and safety risks. Intellectual property theft and counterfeiting represents an emerging threat to the health and safety of American consumers.

Let's be absolutely clear about this: there is a significant difference between copyright infringement (like singing "Happy Birthday"), and counterfeiting (like manufacturing a knockoff car part and attempting to sell it as an original). Counterfeiting is about trademark infringement and/or patent infringement, and applies to physical goods. The copyright infringement (or "piracy") provisions in ACTA are focused on digital creative works, which do not usually carry any risks for health and safety.

Contrary to Senator Bayh’s letter’s central premise, ACTA is concerned with far more than just "health and safety" policy considerations from counterfeit goods. Leaked provisions, the official summary released by the USTR, and other negotiating governments state that ACTA will deal with copyright infringement, and regulation of the global Internet. Senator Bayh's letter seems to be focused on issues involving trademark and patents, but does not address the reports of draconian overreach on copyright issues that were raised by our members’ letters to him.

No one disputes that sub-standard counterfeit pharmaceutical products pose significant health and safety risks for citizens. But there are existing international IP enforcement laws that address the health and safety dangers posed by counterfeit goods, namely the Agreement on Trade Related Aspect of IP Agreement (TRIPS). It’s time for those who claim that we need ACTA to explain why TRIPS is not sufficient to address these issues, and how they will ensure that ACTA will not instead be used to seize life-saving drugs that are in transit to developing countries.

Senator Bayh: For these reasons, we must protect private innovation and public safety by addressing the shortcomings in global enforcement.

US copyright law embodies a careful balance between the exclusive rights of rightsholders and the interests of information users and technology companies that rely upon exceptions and limitations for research, freedom of expression, and legitimate business. If the goal of ACTA is to protect innovation, it should give equal consideration to all US industries – both the US entertainment industry and the US tech sector (which dwarfs it). To date, that doesn’t appear to be the case. It's hardly believable to say that ACTA protects innovation when it seeks to amplify pressure against the Internet and technology industries in an effort to "protect" an industry that's nearly a century old. (And let’s remember that with box office returns at record highs, it's completely unclear that Hollywood is as completely damaged by online copyright infringement as it claims to be.)

It's taken for granted that copyright encourages innovation, and so it's easy to then infer that stronger copyright enforcement will encourage stronger innovation. But evidence is mounting that innovation (and particularly innovation at the edge) is actually driven by creativity, which in turn thrives within balanced IP regimes, with appropriate copyright exceptions and limitations like fair use that serve the needs of all information stakeholders.

We remain concerned that US negotiators are — with unprecedented secrecy — negotiating an agreement that is intended to set new international standards for intellectual property enforcement. These standards, largely being pushed by the US entertainment industry and luxury goods trademark owners, have the potential to harm citizens, stifle the spread of technology, and damage the global Internet.

Because ACTA is being negotiated as an Executive Agreement, it will not be subject to the Congressional oversight mechanisms that have applied to recent bilateral free trade agreements, even though it appears likely to have a far greater impact on the global knowledge economy than any of those.

Given that, we urge Senator Bayh and others to take the time to find out more about the contents and likely impact of ACTA, and to consult with all types of affected stakeholders, including the tech sector and those who use the Internet for education and to further social and economic development across borders, and not just those that have the best-paid lobbyists.

(For those interested in additional context, Senator Bayh's complete response can be read here.)


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