Six Secret (and Now Open) Fears of ACTA

Abstract

In April 2009, Japan, the United States, the European Community, and other negotiating parties of the Anti-Counterfeiting Trade Agreement released a joint consolidated draft of the once-secret agreement. Although the release of this document has alleviated some of the concerns about the lack of transparency and public participation, there remain many unanswered questions.

Written for a symposium on intellectual property law, this article argues that ACTA remains highly problematic and dangerous. It identifies six different fears of the Agreement: (1) concerns over the procedural defects of the ACTA negotiation process; (2) the potential for ACTA to ratchet up the already very high existing intellectual property standards within the United States; (3) ACTA would undoubtedly lead to greater protection and enforcement of intellectual property rights abroad, especially in developing countries; (4) ACTA could backfire on U.S. consumers and businesses, even if no legislative changes are indeed required to meet the new treaty obligations; (5) ACTA would result in the development of a new, freestanding, and self-reinforcing infrastructure for facilitating future efforts to ratchet up international intellectual property standards; (6) ACTA is unlikely to be as effective as rights holders and policymakers in the negotiating parties have anticipated.