Global Innovation Policy Center

Offering no details – as is their standard – government negotiators for a global anticounterfeiting treaty this week declared a commitment to make efforts to find ways to increase transparency and inclusion of public input in the secretive talks. But they stopped short of actually committing to increased transparency and inclusion, or explaining the continued need for secrecy.

”Recalling their shared view of the importance of providing opportunities for meaningful public input, the participants reaffirmed their commitment to intensify their respective efforts to provide such opportunities and collectively enhance transparency,” a 29 January statement from the Office of the United States Trade Representative said.

The seventh and latest round of the Anti-Counterfeiting Trade Agreement (ACTA) talks was held in Guadalajara, Mexico from 26-29 January. The next round is scheduled for New Zealand in April. The talks are on a fast track to completion by end of 2010.

Participants this week included Australia, Canada, the European Union (represented by the European Commission), Spain in the EU Presidency, and un-named EU Member States, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States.

The trade office in its statement would say only that the latest round focussed on “civil enforcement, border enforcement and enforcement of rights in the digital environment.” No press briefing was offered afterward as used to be typical for trade negotiations.

The two-year-old talks have been plagued by public doubts due to their secrecy. The need for such secrecy has not been fully explained but counterfeiting and piracy have been said to be linked to organised crime and even terrorism by right holder groups in recent years. It is unclear whether this link would apply to online copyright infringement or trademarks too.

In recent weeks, elected officials from several key participant countries, including the United States, Canada, and several countries in the European Union have raised concerns about the lack of transparency and have requested more information about the negotiations. Among them is US Senator Ron Wyden, an Oregon Democrat, as reported here. Also, Democratic Sens. Bernard Sanders (Vermont) and Sherrod Brown (Ohio), sent a letter [pdf] to USTR in November asking to see the agreement.

In December, an international coalition of dozens of nongovernmental groups issued an open letter of concern, especially about internet freedom, available here.

There also was a recent panel discussion on the topic in Washington, DC, hosted by Google, that aired some of the thinking and speculation around the treaty. The panel was linked to and reported on with some scepticism here.

Some observers are concerned that lawmakers pressing for more transparency may be missing the bigger point of examining what is actually being negotiated. Negotiators and the rights holder industry are pitching the agreement as an “executive agreement,” not a “trade” agreement and therefore not requiring congressional approval in the United States, an angle they may repeat in other venues.

In a recent interview, ACTA critic James Love of Knowledge Ecology International argued that whether or not it is legal for the government to call it an executive agreement, it is not appropriate. “The political demands do not depend upon what what is legally permissible,” he told Intellectual Property Watch.

Love also said there can be no discussion on the merits of a secret agreement, and that there is no clear reason it should be kept from the public. “It is clearly not secret from the negotiating parties, or corporate lobbyists, or congressional staff,” he said. “Why should the public be the only entity left in the dark?” He added that allowing public involvement at the end, in the event that the treaty does go before Congress, would be too late, as no substantive changes could likely be made.

The Electronic Frontier Foundation’s Eddan Katz and Gwen Hinze recently published an analysis of the agreement, raising questions about its legality. Their article in the Yale Journal of International Law Online, linked through Katz’s blog post at EFF is here. They make several suggestions on ways to increase transparency and accountability in the talks.

Negotiators have sought to assure the public that the final treaty will not require changes to national laws. But alleged leaked texts revealing aspects of the negotiation a couple of months ago showed potential for inconsistency with laws in several countries such as Europe and Canada, according to Canadian law professor Michael Geist, read here. These areas included application of a “notice-and-takedown” policy where an item must be removed from the internet if an alleged right holder simply informs the website it is posted on. Other provisions he noted were: a three-strikes and you’re out policy, a globalisation of the US Digital Millennium Copyright Act (DMCA), and harmonised contributory copyright infringement rules.

There have been some suggestions that industry observers might wish for more transparency, such as in a November letter, here, from the Motion Picture Association of America to Senate Judiciary Committee Chairman Patrick Leahy (Vermont Democrat), which called the push for transparency “a distraction.” But generally industry seems content with their access to information about the talks. Lobbyists from the US Chamber of Commerce and Microsoft attending last week’s patent committee meeting at the World Intellectual Property Organization in Geneva indicated comfort with it and declined to share any details they might know.

[Updated:] The Chamber issued a statement last week supporting transparency within limits and describing the talks as trade negotiations. “Given the importance of this agreement to our economy and to consumers, we must not allow ACTA to be derailed by a minority opposed to protecting the rights of artists, inventors, and entrepreneurs,” it said. “The US Chamber has also been supportive of greater transparency in these talks. We recognise the constraints of international trade negotiations; however we urge the administration to ensure the congressional committees of jurisdiction – as representatives of the American people – are fully briefed on the scope of the ACTA negotiations and why concluding this agreement expeditiously is in the country’s best interests.”