This coalition has pursued the growth of IP rights in multilateral institutions over the past two decades to secure its incumbent position in the knowledge economy. These efforts now threaten to undermine the balance of IP at the foundation of sustainable innovation and creativity. IP enforcement isolated from innovation policy ignores the legal flexibility that enables information technology to emerge, obstructs access to knowledge, and threatens citizens’ civil liberties.
This Essay questions the agenda behind the plurilateral Anti-Counterfeiting Trade Agreement (ACTA or the Agreement), now under negotiation, that is the vanguard of the global IP enforcement regime. Announced as a modest coordination of customs practices among friendly nations, ACTA regulates far more than that. We discuss the loopholes of accountability under which ACTA is being negotiated. We analyze the impact of this secrecy on public policy and citizens’ rights in the information society, and dispute the appropriateness of negotiating ACTA as a sole executive agreement.
We argue that increased transparency, accountability mechanisms, and input from civil society in the ACTA negotiations are essential because: (1) accountability mechanisms are core to the constitutional design of foreign trade agreements; (2) balanced policymaking requires a diverse representation of interests; and (3) global Internet regulations could result in changes to the Internet’s fundamental architecture.
We conclude by outlining several proposals that would help achieve this:
• Reform trade advisory committees for more diverse representation;
• Strengthen congressional oversight and negotiating objectives;
• Institutionalize transparency guidelines for trade negotiations; and
• Implement the State Department’s solicitation of public comments under the Circular 175 procedure.