In Secret, Nations Work Toward Crackdown on Piracy

PARIS — Behind a veil of secrecy, the United States, the European Union, Japan and other countries are forging ahead with plans to coordinate an international crackdown on illegally copied music, movies, designer bags and other goods that change hands in sidewalk souks and Internet bazaars.

Negotiators, under intense pressure from media companies, luxury brands and other corporate victims of piracy, are scrambling to complete a so-called Anti-Counterfeiting Trade Agreement by the end of the year.

But the process is running into growing criticism from Internet campaigners, lawmakers and even some people involved in it.

After the most recent round of negotiations late last month in Guadalajara, Mexico, news of disagreements has been trickling out, despite an official vow of silence from the participants, which has itself become a main source of friction.

E.U. negotiators, for example, are said to have balked at a U.S.-backed proposal to require Internet service providers to take tough steps against digital piracy.

Under such a structure, leaked papers from the Union show, Internet providers might be required to filter out illegally copied songs and films from their networks or to sever copyright violators’ Internet connections.

Many nations are said to have drafted alternatives to the U.S.-backed proposal, seeking alternatives to those demands.

“Our system allows for flexibility,” said one person with knowledge of the E.U. position, who insisted on anonymity because of nondisclosure agreements governing the talks. “The E.U. cannot accept an agreement that mandates a single solution.”

Within Europe, different countries have pursued a range of approaches to dealing with Internet piracy. Last year, France approved a so-called three-strikes system, under which illegal file-sharers who ignored two warnings to quit could face the loss of Internet access.

Britain has proposed similar legislation. But German and Swedish officials have ruled out such measures, and politicians elsewhere in Europe have sought to enshrine Internet access as a fundamental human right.

Details of what has actually been discussed remain sketchy. Though the talks have been going on for two years, texts of the proposed deal have been sealed from public view.

Critics say the lack of transparency is highly unusual for a trade agreement with so many parties involved, especially since the deal could influence the workings of the Internet and affect hundreds of millions of people around the world.

“You’d think it was nuclear weapons kind of stuff, not intellectual property law,” said Eddan Katz, international affairs director at the Electronic Frontier Foundation, which campaigns against regulation of the Internet. “The fact that there are 30 or 50 people sitting around a table deciding the laws of the world’s nations, when there are major areas of disagreement, seems like a wholesale contravention of the democratic process.”

Lawmakers have also largely been kept out of the loop.

In the United States last month, Senator Ron Wyden, a Democrat from Oregon, wrote to Ron Kirk, the U.S. trade representative, whose office is negotiating on behalf of the United States, to seek information about the negotiations.

In Britain, members of the three main political parties have signed a parliamentary motion calling on their government to release details. National lawmakers elsewhere in Europe, and at the European Parliament, have also demanded greater openness.

Even some participants want to ease the secrecy that surrounds the process.

“The Swedish government believes that we should release a consolidated text as soon as possible,” said Stefan Johansson, a Swedish Justice Ministry official who has been involved in the talks.

After the latest round in Mexico, the participants issued only a bland communiqué saying, among other things, that the negotiations had been “productive” and had “focused on civil enforcement, border enforcement and enforcement of rights in the digital environment.”

“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,” the statement said.

The person with knowledge of the talks said one idea under consideration would be to invite groups with concerns to meet on the sidelines of the next round, scheduled for Wellington in April.

Despite the haze surrounding the proposed agreement, some of the most alarmist speculation appears to have been exaggerated. For example, several people with knowledge of the talks said there was no truth to one early rumor — that the accord would empower customs officials to search digital music players for illegally copied songs at border crossings.

Business groups say fears have been fanned by people with a vested interest in weakening copyright protection in the proposed Anti-Counterfeiting Trade Agreement, or ACTA.

These groups say that greater international coordination is needed to protect businesses that rely on creativity, brand names and other easily copied assets, particularly in export markets.

“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,” Mark T. Esper, executive vice president of the Global Intellectual Property Center, an affiliate of the U.S. Chamber of Commerce, said in a statement.

Critics of the process say that if protecting industrialized countries’ economies is the goal, the talks ought to include developing countries like China, India and Indonesia, where intellectual property laws or enforcement are sometimes weaker. In addition to the United States, the European Union and Japan, the parties to the talks are Australia, Canada, South Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland.

“Some might see it as an anti-counterfeiting deal without the counterfeiters,” said Michael Geist, a law professor at the University of Ottawa who has been mustering critics of the negotiations via his blog.

Portions of the negotiations dealing with the Internet have attracted more attention than proposals for cracking down on piracy of physical goods and other trademark violations.

In an interview with World Trademark Review, a trade journal, the assistant U.S. trade representative for intellectual property and innovation, Stan McCoy, lamented what he called a “misperception that this agreement will focus mostly or exclusively on copyright infringement in the digital environment.”

“The threat of physical goods bearing counterfeit trademarks is a real one, and it is a priority for ACTA,” Mr. McCoy said. “Americans do not want to brush their teeth with counterfeit toothpaste or drive a car with knockoff brakes.”

His office did not respond to requests for elaboration on the U.S. position.

One supporter of the talks, the Motion Picture Association of America, is urging U.S. negotiators not to back down on proposals for fighting the unauthorized digital copying of movies.

“Internet piracy has emerged as the fastest-growing threat to the filmed entertainment industry,” Dan Glickman, chief executive of the association, said in a recent letter to Senator Patrick J. Leahy, the Vermont Democrat who is the chairman of the U.S. Senate Judiciary Committee. “M.P.A.A. firmly believes that a strong ACTA should address this challenge, raising the level and effectiveness of copyright enforcement in the digital and online marketplaces.”

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