U.S. offers peek at proposed copyright treaty

After receiving complaints about the lack of transparency in negotiations for the Anti-Counterfeiting Trade Agreement, the Obama administration is releasing a summary of the proposed treaty.

After months of secrecy that has rankled public interest groups, the Obama administration is revealing limited information regarding a multilateral anti-counterfeiting treaty currently under negotiation.

The Office of the U.S. Trade Representative on Monday released a summary (PDF) of the Anti-Counterfeiting Trade Agreement, a treaty for which negotiations began in 2006 with the aim of setting standards for the enforcement of intellectual property rights.

"We look forward to taking more steps to engage with the public in our efforts to make trade work for American families, " U.S. Trade Representative Ron Kirk said in a statement that called the summary a testament to the Obama administration's commitment to transparency.

The administration last month said the trade agreement and related materials were classified in the interest of national security, a position first taken by the Bush administration.

The summary lays out a set of potential chapters in the agreement and the provisions that may be included in each chapter. It states, however, that "at this point in time, treaty delegations are still discussing various proposals for the different elements that may ultimately be included in the agreement. A comprehensive set of proposals for the text of the agreement does not yet exist."

It does, however, indicate there have been discussions of holding Internet service providers liable for infringing material.

The countries negotiating the treaty: the U.S., Canada, Mexico, Switzerland, the 27 EU nations, Morocco, Australia, Japan, Singapore, South Korea, and New Zealand.

The summary includes these potential sections:

• Intellectual property rights enforcement in the digital environment. The parties involved intend to include a chapter in the agreement clarifying the "role and responsibilities of Internet service providers in deterring copyright and related rights piracy over the Internet." The summary gives no further details, saying that the treaty negotiators are still collecting information to develop a common understanding of how to address these issues.

• Civil enforcement. This section would include how to determine IP infringement damages, judicial authority to hand down injunctions requiring a party to desist from an infringement, and the process for destroying counterfeit goods.

• Border measures. This section would address whether border measures should only apply to imports or to exports as well, giving travelers permission to carry goods for their personal use, procedures for right holders to request customs authorities to suspend at the border goods suspected to infringing on IP rights, and authority for customs to initiate such suspension of their own volition.

• Criminal enforcement. This section would, among other things, clarify the scale of infringement necessary to qualify for criminal sanctions; clarify the scope of criminal penalties, particularly in cases of video recording motion pictures and in cases of trafficking counterfeit labels; clarify in which cases the relevant authorities could take action against infringers on their own initiative; and dictate the authority to search or seize suspected infringing goods or the assets derived through infringing activity.

• International cooperation. There will likely be a chapter to recognize the need for cooperation among the competent authorities, for providing technical assistance for improving enforcement, and for sharing relevant information such as statistical data and information on best practices, in accordance with international rules and related domestic laws that protect privacy and confidential information.

Gigi Sohn, president of the nonprofit public interest group known as Public Knowledge, said the summary is a first step in increasing the treaty negotiation's transparency.

"The dissemination of the six-page summary will help to some degree to clarify what is being discussed," she said in a statement. "At the same time, however... it would have been helpful had the (U.S. trade representative) elaborated more clearly the goals the United States wants to pursue in the treaty and what proposals our government has made, particularly in the area of intellectual property rights in a digital environment."

Some entertainment industry representatives have told Congress that the U.S. should consider using Internet service providers to prohibit the flow of stolen content, as some European countries are doing.

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