[Infowarrior] - ACTA Guide, Part Three: Transparency and ACTA Secrecy

[Richard Forno]

ACTA Guide, Part Three: Transparency and ACTA Secrecy
Wednesday January 27, 2010

http://www.michaelgeist.ca/content/view/4737/125/

Part Three of the ACTA Guide (Part One on the agreement itself, Part  
Two on the official and leaked documents) focuses on the issue that  
has dogged the proposed agreement since it was first announced - the  
lack of transparency associated with the text and the talks.  As  
yesterday's public letter from NDP MP Charlie Angus and the UK cross- 
party motion highlight, elected officials around the world have  
latched  onto the transparency issue and demanded that their  
governments open ACTA to public scrutiny.  Reviewing the ACTA  
transparency issue involves several elements: the public concern with  
ACTA secrecy, the source of the secrecy, and the analysis of whether  
ACTA secrecy is common when compared to other intellectual property  
agreements.

1.   The Public Concern

Over the course of the two years since ACTA was first publicly  
announced (it was secretly discussed for about two years before the  
public unveiling), there have been repeated calls from elected  
officials and public interest groups to address the transparency  
concerns. In fact, each time portions of the ACTA text leak, the  
concerns grow stronger.  For example, a sampling of the global call  
from politicians  for greater transparency includes:

	• Senators Bernie Sanders and Sherrod Brown, United States
	• Rep. Mike Doyle, United States
	• Rep. Zoe Lofgren, United States
	• Nicolas Dupont-Aignan, France
	• Tom Watson (Labour), John Whittingdale (Conservative), Lindsay  
Hoyle (Labour), and Don Foster (Lib Democrats), United Kingdom
	• Minister Åsa Torstensson, Sweden
	• MEP Jens Holms, Sweden
	• MEP Axel Voss, Germany
	• MP Clare Curran, New Zealand
	• Peter Dunne, New Zealand
	• MP Charlie Angus, Canada
Moreover, the European Parliament has voted for a proposal to bring  
more transparency and public access to documents.  The resolution  
includes specific language about the Anti-Counterfeiting Trade  
Agreement.  In particular, it states:

Acting in accordance with Article 255(1) of the EC Treaty, the  
European Commission should immediately make all documents related to  
the ongoing international negotiations on the Anti-Counterfeiting  
Trade Agreement (ACTA) publicly available.

The justification for the language is:

The Anti-Counterfeiting Trade Agreement (ACTA) will contain a new  
international benchmark for legal frameworks on what is termed  
intellectual property right enforcement. The content as known to the  
public is clearly legislative in character. Further, the Council  
confirms that ACTA includes civil enforcement and criminal law  
measures. Since there can not be secret objectives regarding  
legislation in a democracy, the principles established in the ECJ  
Turco case must be upheld.

In addition to elected officials and parliamentary resolutions,  
numerous public interest groups from around the world have joined the  
call for greater ACTA transparency (current joint declaration is one  
example).  Business groups have also attacked the secrecy associated  
with the talks.

2.   The Sources of ACTA Secrecy

Identifying the sources of ACTA secrecy are alternately easy and  
difficult. The confidentiality statement that forms the basis of ACTA  
confidentiality has been leaked and makes it clear that the U.S. set  
the initial terms of secrecy.  A more detailed discussion can be found  
in several documents responding to access to information/freedom of  
information requests.  For example, the Declaration of Stanford McCoy  
of the USTR on ACTA disclosure of documents provides the U.S.  
perspective, while European Council response on ACTA transparency and  
disclosure of documents provides the EU view (second EU document here).

While those are the official positions, some countries have provided  
limited access to "ACTA Insiders."  The U.S. made the Internet chapter  
available under non-disclosure agreement to 42 ACTA insiders in 2009.   
Canada intended to create an insider advisory group, but abandoned  
those plans after details of the possible members was obtained under  
the Access to Information Act and reported in the press.

More difficult is to identify who currently supports ACTA secrecy.  
According to an article in the EU Observer, roughly half of the 27 EU  
Member States support increased ACTA transparency, suggesting that  
making content publicly available would increase public confidence.   
There have been similar reports in the UK, New  Zealand, Australia,  
and Canada. That still leaves the Asian countries and the U.S. as  
potential holdouts (USTR head Ron Kirk has reportedly said that  
countries would walk away from the treaty if the text were made  
available).

3.   Is ACTA Secrecy Standard?

The third major issue is whether the ACTA secrecy is commonplace.   
Last fall, the ACTA partners released a joint statement arguing that  
"it is accepted practice during trade negotiations among sovereign  
states to not share negotiating texts with the public at large,  
particularly at earlier stages of the negotiation."  Yet a closer  
examination of similar international IP negotiations reveals that the  
ACTA approach is not standard.

U.S. NGO groups have made a strong case for how ACTA's lack of  
transparency is out-of-step with many other global norm setting  
exercises.  With regard to international fora, they note that the WTO,  
WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on  
Private International Law, and an assortment of other conventions have  
all been far more open than ACTA.  For example, the WIPO Internet  
treaties, which offer the closest substantive parallel to the ACTA  
Internet provisions, were by comparison very transparent:

The two WIPO Internet Treaties (WCT and WPPT) were negotiated in a  
completely open meeting at the Geneva Convention Center. The public  
was allowed to attend without accreditation. The draft texts for the  
WCT and the WPPT were public, and the U.S. government requested  
comments on the draft texts, which were available, among other places,  
from the U.S. Copyright Office.

Two other documents offer similar reviews of the transparency of  
negotiation documents and opportunities for public participation.   
Moreover, Jamie Love recently posted a comparison of the level of  
transparency during the FTAA negotiations with the ACTA talks.   
Several drafts of the FTAA agreement were released to the public as  
the negotiations were ongoing.

The inescapable conclusion is that the ACTA approach is hardly  
standard.  Rather, it represents a major shift toward greater secrecy  
in the negotiation of international  treaties on intellectual property  
in an obvious attempt to avoid public participation and scrutiny.