Of Acta/tpp and Sopa/pipa

In the past few years, policymakers, academic commentators, consumer advocates, civil liberties groups, and user communities have expressed grave concerns about the steadily increasing levels of enforcement of intellectual property rights. Taking note of these concerns, this Occasional Paper brings together two recently published essays discussing the ongoing efforts to strengthen intellectual property enforcement standards. Published in The WIPO Journal as part of a special issue on the politics of intellectual property, the first essay examines the “country club” approach the negotiating parties of the Anti-Counterfeiting Trade Agreement (ACTA) embraced to establish new and higher international intellectual property enforcement standards. It points out that the agreement is flawed not only because it is a country club agreement, but also because it is a bad country club agreement. The essay then examines ACTA in the context of a recent trend of using bilateral, plurilateral, and regional trade and investment agreements to circumvent the multilateral norm-setting process. It contends that this disturbing trend could upset the political dynamics in the current international intellectual property regime. The essay concludes with a discussion of the multiple layers of complex politics behind the ACTA negotiations: international, domestic, and global. It focuses on developments both within the new intellectual property enforcement club and without. The second essay, which was published in the inaugural issue of Drake Law Review Discourse, touches on not only ACTA, but also the various other efforts that seek to ratchet up intellectual property enforcement standards. Termed collectively the “‘alphabet soup’ of transborder intellectual property enforcement,” these attempts ranged from the establishment of international agreements, such as ACTA and the TransPacific Partnership Agreement (TPP), to the introduction of new domestic legislation, such as the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA). This essay begins by identifying six different concerns and challenges ACTA poses to U.S. consumers, technology developers, and small and midsize firms. It then explores the ongoing negotiation of the TPP and explains why that agreement is likely to be more dangerous than ACTA from * Copyright © 2012 Peter K. Yu.