US Congress is not bound by ACTA, according to White House answers to Senate Finance on ACTA and TPP negotiations

Ambassador Ron Kirk holds the office of United States Trade Representative (USTR) in the White House. On March 9, 2011, he testified before the US Senate Finance Committee on the 2011 Trade Agenda. Several members of the Committee provided follow up questions, and Ambassador Kirk has answered them. A full copy of the responses are available here:

http://keionline.org/sites/default/files/RonKirk_SFC_9Mar2011.pdf

Among the answers are several questions about ACTA and the Trans Pacific Partnership Agreement (TPP) asked by Senator Ron Wyden. Ambassador Kirk's responses to those questions and KEI commentary follow. Among the highlights:

  • In Question 5, USTR claims ACTA can be implemented without changes in US law. Give the fact that ACTA is not consistent with US law in some well known areas, this implies some type of implied exceptions understanding in ACTA.
  • In Question 7, USTR says "the agreement does not constrain Congress’ authority to change U.S. law." This understanding is repeated in other answers.
  • In Question 8, USTR claims "U.S. courts can continue to apply U.S. law and remain in conformity with the agreement. As noted above, ACTA does not constrain Congress’ authority to change U.S. law."
  • In Question 12, USTR was asked "does the Administration intend promote an open and transparent process in the way ACTA is implemented and shaped in the future, including in the ACTA committee?" USTR said yes.
  • In Question 12, USTR was asked, "Will the Administration’s views on intellectual property rights enforcement be informed by seeking the points of view by a wide variety of interested parties, including consumers?" USTR said it "will continue to consult with stakeholders, both formally, through our ITAC advisory system, and informally. This will help ensure that we receive appropriate input, including with respect to matters addressed in the ACTA committee.
  • In Question 13, USTR implies the US will only exclude patents and regulatory data from ACTA "to the extent of any inconsistency with U.S. law."

Here is the full exchange between Senator Wyden and Ambassador Kirk on ACTA and the TPP:

UNITED STATES SENATE
COMMITTEE ON FINANCE
HEARING ON THE 2011 TRADE AGENDA
MARCH 9, 2011

QUESTIONS FOR AMBASSADOR RON KIRK

Questions from Senator Wyden

On the Anti-Counterfeit Trade Agreement (ACTA):

Question 4

Is it correct that the Administration believes that ACTA is an Executive Agreement that articulates a common understanding about how intellectual property rights will be enforced and that it does not impact the scope of those rights?

Answer:

Yes, ACTA is an Executive Agreement that does not affect the scope of intellectual property rights. ACTA Article 3(1) provides that ACTA “shall be without prejudice to provisions in a Party’s law governing the availability, acquisition, scope and maintenance of intellectual property rights.”

Question 5

Does the Administration believe that no changes in U.S. law, or the application of U.S. law, are required for the U.S. to be consistent with the understandings articulated in ACTA?

Answer:

Yes. ACTA can be implemented without new legislation.

Question 6

Does the Administration believe that the provisions of the Digital Millennium Copyright Act found in 17 U.S.C. sec. 512, and as interpreted by the courts, are consistent with ACTA, and ACTA in no way impacts U.S. law with respect to third-party liability?

Answer:

The ACTA is consistent with United States law, including with the Digital Millennium Copyright Act.

Question 7

If the Administration signs ACTA, doing so will not prevent the U.S. from changing its law, including in a number of specific areas like injunctive relief, damages for patent infringement, access to orphaned copyrighted works, and statutory damages, correct?

Answer:

The ACTA was drafted to reflect both the general principles and specific provisions of U.S. law in the areas the agreement covers. That said, the agreement does not constrain Congress’ authority to change U.S. law.

Question 8

Does the Administration believe that the Congress and the courts are not bound by ACTA? If they are not bound by ACTA, they are therefore not constrained from developing guidelines that pertain to the issuance of injunctions against third parties, providing statutory licenses as an appropriate remedy, awarding continuing royalties in lieu of injunctions, or to implement reasonable exceptions to remedies in order to advance the public interest or to combat anti-competitive practices, correct?

Answer:

The ACTA was drafted to reflect both the general principles and specific provisions of U.S. law in the areas the agreement covers. As a result, U.S. courts can continue to apply U.S. law and remain in conformity with the agreement. As noted above, ACTA does not constrain Congress’ authority to change U.S. law.

Question 9

Does the Administration believe that ACTA is to be interpreted and implemented in a manner that recognizes the importance of balancing the interests of right holders and intermediaries and users, and that it ensures that measures and procedures to enforce intellectual property rights are fair and equitable?

Answer:

Yes. In the preamble, the Parties note their desire to address the problem of infringement of intellectual property rights “in a manner that balances the rights of relevant right holders, service providers, and users. In addition, Article 6.2 of ACTA provides that “[p]rocedures adopted, maintained, or applied to implement the provisions of [Chapter II] shall be fair and equitable, and shall provide for the rights of all participants subject to such procedures to be appropriately protected.”

Question 10

Will the Administration oppose any efforts to use ACTA to develop barriers to legitimate commercial activity or to undermine fundamental principles such as freedom of expression, fair process, and privacy?

Answer:

Yes. The Administration would oppose such efforts.

Question 11

Does the Administration intend to encourage overseas enforcement of intellectual property rights, including in the digital environment, in a manner consistent with the balanced way these rights are enforced in the U.S.?

Answer:

Yes. We believe that appropriately balanced enforcement systems are critical to protecting U.S. right holders and fostering e-commerce.

Question 12

Does the Administration intend to promote an open and transparent process in the way ACTA is implemented and shaped in the future, including in the ACTA committee? Will the Administration’s views on intellectual property rights enforcement be informed by seeking the points of view by a wide variety of interested parties, including consumers?

Answer:

Yes, as stated in the President’s Trade Policy Agenda, the Administration is committed to conducting its trade policy efforts based on high standards that reflect American values on public engagement and transparency. USTR will continue to consult with stakeholders, both formally, through our ITAC advisory system, and informally. This will help ensure that we receive appropriate input, including with respect to matters addressed in the ACTA committee.

Question 13

Will the U.S. apply the civil enforcement section of ACTA to patents and the protection of undisclosed information?

Answer:

ACTA permits a Party to exclude patents and the protection of undisclosed information from the obligations set out in the agreement’s civil enforcement section. The United States will not apply the provisions of that section with respect to patents and the protection of undisclosed information to the extent of any inconsistency with U.S. law.

Question 14

Does the Administration intend to implement ACTA, including enforcement activities against third parties, in a way that does not to hinder the access and movement of legitimate generic medicines and will be consistent with the TRIPS Agreement, the WTO Declaration on TRIPS and Public Health and the WHO Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property?

Answer:

ACTA is not intended to hinder the movement of legitimate generic medicines. In the preamble to the agreement, the Parties recognize the principles set forth in the Doha Declaration on the TRIPS Agreement and Public Health. Moreover, patents and protection of undisclosed information fall outside the scope of ACTA’s provisions on border measures. (See Section 3, footnote 6.)

On the Trans-Pacific Partnership Agreement (TPP):

Question 15

Because the Internet represents the shipping lane of the 21st Century, do you agree that obtaining from our trade partners binding trade commitments on cross-border data transfers should be an economic and trade priority of the United States?

Answer:

We are working hard to develop TPP commitments that enhance the ability of our companies to operate effectively on a cross-border basis. Moving data may be critical to such trade, particularly for companies seeking to take advantage of the Internet, an area U.S. companies have pioneered and which is a great source of our companies’ competitiveness. We are looking very closely at how we could accomplish this goal. Given the number of stakeholders involved, this is a complex undertaking, but we are committed to trying to address this issue in a way that supports our interests.

Question 16

Will the Administration seek to incorporate a substantive right on cross-border data transfers in the TPP?

Answer:

Yes, if possible.

Question 17

With respect to enforcement of intellectual property in the digital environment:

Will the Administration seek to ensure that intermediaries face no liabilities in TPP countries that they would not face in the U.S.?

Answer:

Our goal in TPP is to achieve high standards of IP protection and enforcement in the Asia Pacific region that will stand alongside previous U.S. FTAs in the Asia-Pacific region, including with current TPP partners Australia, Chile, Peru, and Singapore. To date, the United States has put forward proposed text covering many aspects of copyrights, trademarks, patents, and enforcement that would achieve this goal.

We note that those past FTAs contain provisions modeled on the U.S. Digital Millennium Copyright Act, which addresses limitations on liability for ISPs. We are seeking commitments that would be similar to, and consistent with, provisions found in U.S. law.

A. Will the Administration seek to ensure that any enforcement actions taken against websites in TPP countries are done in a transparent way and will include meaningful due process?

Answer:

Transparency and due process are important aspects of the U.S. IP enforcement regime. We are seeking commitments in the TPP that are fully consistent with these principles; in this regard, if there are any concerns with particular TPP partners, we would appreciate any suggestions that you or other members of Congress might have.

B. What is the U.S. proposing in the TPP talks to ensure that the integrity of the Internet and fundamental principles of free speech are protected during any efforts to combat copyright infringement?

Answer:

The TPP offers an important opportunity to incentivize innovation and creativity throughout the region. Our goal in TPP is to achieve high standards of IP protection and enforcement in the Asia Pacific region that will stand alongside previous U.S. FTAs in the Asia-Pacific region, including KORUS, and FTAs with current TPP partners Australia, Chile, Peru, and Singapore. In that connection, we note that these past FTAs contain copyright and enforcement provisions that are modeled on U.S. law, and therefore fully consonant with ensuring the integrity of the Internet as well as the fundamental principle of free speech.


Who is bound by ACTA?

Ambassador Kirk implies US law is consistent with ACTA, despite well known differences. (See, for example, http://keionline.org/node/1021), and he makes it clear that the White House does not consider ACTA a barrier to the Congress changing US law in the very areas where ACTA purports to sent norms, such as in "specific areas like injunctive relief, damages for patent infringement, access to orphaned copyrighted works, and statutory damages."

If the US can ignore inconsistencies between US law and ACTA, and US Congress is not bound when amending US law, are other countries bound? The European Commission has told the European Parlaiment that ACTA is a binding agreeement. Several members of the European Parliament have asked the Commission technical questions on this issue. See, for example:

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