The Anti-Counterfeiting Trade Agreement (ACTA) “represents a case of ‘counterfeit global policy-making’. This is because: (1) Its justifications, considering the existence of TRIPS, are dubious if not fraudulent; (2) it seeks confrontation, particularly with developing countries as opposed to cooperation and ignores the efforts by the latter group of countries to implement TRIPS in resource-poor settings; (3) it circumvents legitimate multilateral forums such as WTO and WIPO to avoid global accountability adopting the discredited “you are with us or against us” attitude; and (4) it is burdened with a huge democratic deficit in the countries where the idea has originated.”

This is what IQsensato argued in its In Focus piece in June 2008. Ten months later, on 6th April 2009, the Office of the United States Trade Representative (USTR) released a six page Summary Paper on the key elements of  ACTA in response to widespread criticism regarding the secrecy surrounding ACTA negotiations. Similar summaries have been also released by other ACTA proponents such as Canada. The disclosure of the key elements under discussion has elicited interesting discussions in  a range of quarters.

What is clear to me is that while the summary constitutes a step in the right direction, with respect to reason number four for calling ACTA counterfeit policy-making, it also goes some way to justify reasons one through to three. The danger signs are becoming clearer.

Considering the existence of TRIPS is ACTA justified?

As noted in the IQsensato In Focus piece, the TRIP[S Agreement was established in recognition of “the need for a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods” among other reasons. Fifteen years later, with many developing countries and least-developed countries (LDCs) still undertaking legal reforms to implement TRIPS, the USTR Summary Paper argues that ACTA aims to “establish international standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of counterfeiting and piracy.” 

For the United States and its partners to justify this initiative, which irrespective of its technical plurilateral nature, will have far-reaching consequences in third countries, including in the context of trade, a better evidence-based justification is required. The failure of the United States and the other ACTA countries to convince the global community of the need for this approach in the WTO Council for TRIPS, WIPO, WHO and at the World Customs Organization (WCO) in recent years shows that the USTR and others need to work harder at convincing the world that there is a genuine need for such a treaty. Without better justification these efforts will continue to be seen as efforts to promote selfish trade and commercial interests and not efforts to address problems such as those associated with sub-standard and fake medicines.

International confrontation or international cooperation?

The USTR Summary Paper claims that ACTA will achieve its objective by, among other things, increasing international cooperation. In truth, the approach taken by the ACTA proponents is likely to result into international confrontation as opposed to international cooperation. The main reason for this is that as the Summary Paper states ACTA’s main focus is on alleged counterfeiting and piracy “that significantly affect commercial interests”. In effect, ACTA proponents are seeking to regulate international commercial activities without taking into account the views and interests a large majority of the world population and indeed world businesses. The recent disruptions in global trade in legitimate and high quality generic medicines by the actions of Dutch customs authorities show how sensitive this subject is and why it is of utmost importance to be inclusive rather than exclusive in addressing the range of issues that ACTA seeks to address.

The confrontational approach adopted by the ACTA proponents was made even more plain by the disclosure by Canadian government officials that ACTA was mooted as a response to the efforts by developing countries to establish a development agenda for WIPO. ACTA was mooted during the “you are with us or against us” era so this revelation is not surprising. The question, however, is whether the ACTA proponents still believe that they can use such tactics to achieve international cooperation on an issue they claim is a major global problem.

Solving global problems by circumventing global institutions

The revelation by Canadian officials that ACTA is the anti- WIPO Development Agenda as well as the the explanations (in the Summary Paper) attached to the objectives and the various proposed elements provides clear evidence that the proponents are either seeking to circumvent legitimate global institutions to avoid international scrutiny of their intentions or that they are trying to bully international organisations (such as WIPO) into certain lines of action. It is clear that the problems that ACTA proponents claim to want to resolve can be addressed sufficiently in existing international institutions, from WTO, to WIPO to WHO and others. While these same countries claim that they agree with the idea that developing countries need more say in international institutions, ACTA demonstrates that they probably mean that developing countries may have some say but never their way.

Why ACTA’s sitting ducks need to act

Developing country governments, businesses, industries, students, teachers, doctors and other stakeholders are clearly the main targets of ACTA. These countries can choose to act as if nothing is happening and continue to be the sitting ducks that they are now or they can act to change the game. In the IQsensato In Focus a number of opportunities for these countries to act on their own behalf and on behalf of other stakeholders who the ACTA proponents have ignored were highlighted. These opportunities continue to exist and there might be new opportunities with the new United States administration. These opportunities will, however, not exist forever. Proactive action needs to be taken to bring international scrutiny to ACTA and to reject confrontation as the basis for international cooperation in IP enforcement.