[Infowarrior] - In Secret, Nations Work Toward Crackdown on Piracy

[Richard Forno]

February 8, 2010
In Secret, Nations Work Toward Crackdown on Piracy
By ERIC PFANNER
http://www.nytimes.com/2010/02/08/technology/08piracy.html?pagewanted=print
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.”