As treaties continue to proliferate, definitions limit their reach. Definitions keep a treaty honest: they ensure that a treaty regulates a specific slice instead of the whole pie. Take, for example, the term “counterfeit”; the term can be interpreted a number of ways: similar, substantially similar, confusingly similar, identical, intellectual property right infringing, trademark infringing, copyright infringing, patent infringing, misleading, falsified, spurious, or deleterious. A treaty regulating “counterfeiting” could potentially regulate anything that might fall under any one of those definitions if drafters do not give “counterfeiting” a precise definition.
Overly vague definitions can lead to two types of problems. The first is of chameleonism – the treaty appears superficially to be about one issue, but is actually about another. The second is of boundlessness – the definition does not properly circumscribe the treaty’s dominion.
The Anti-Counterfeiting Trade Agreement, ACTA, suffers from both of these problems. The negotiators of ACTA, who’ve been composing this treaty behind closed doors, claim that ACTA’s purpose is to prevent the spread of “counterfeit” medicines that harm patients or falsified goods that hurt brand reputation. But ACTA chooses not to define “counterfeiting” as “misleading”, “falsified”, “spurious”, or “deleterious” – terms that would actually protect patients and brands; instead, ACTA defines “counterfeit” only as goods bear a mark indistinguishable in its essential aspects from a registered trademark. ACTA then goes on to create treaty obligations that regulate infringements of trademarks, copyrights, patents, and all other forms of intellectual monopoly rights, once more addressing matters of trademark, copyright, and patent treaty rather than consumer protection. ACTA is thus a chameleon treaty, purporting to regulate health, but instead focusing its main energies on enforcing private monopolies.
ACTA suffers from boundlessness as well. In its current state, ACTA is an example of a treaty not effectively limited by its definitions. There are a number of other important terms in ACTA that are not explained; and before state parties sign, these terms should be clearly defined, so that obligations are clear and limited:
Suspect Goods: ACTA authorizes border authorities to seize, ex officio, “suspect goods.” What exactly are suspect goods? Are they goods with “counterfeit” marks? Are they generic medicines? Are they deleterious products? If ACTA would seek to create government obligations to enforce private rights, the text should at least delineate the scope of those obligations.
Piracy: ACTA criminalizes commercial scale “piracy.” What is piracy? Does ACTA criminalize the creation of copyright infringing goods, the transport of those goods, or the import and export of those goods? Before ACTA requires states to lock up people for “piracy”, it should tell people what constitutes piracy.
Related Rights: ACTA criminalizes “related rights” piracy. “Related rights” might be a term of art that means copyrights that protect works, phonograms, and performances. Alternatively, “related rights” might also mean rights related by virtue of inclusion in TRIPS – that is, patents, geographical indicators, industrial designs, circuit layouts, or undisclosed information.
The latest ACTA draft is available here: http://www.ustr.gov/webfm_send/2417.