[A2k] William Patry: An ACTA Call to Arms: No More Secret Government

[Thiru Balasubramaniam]

http://williampatry.blogspot.com/2008/06/acta-call-to-arms-no-more-secret.h=
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Tuesday, June 03, 2008
An ACTA Call to Arms: No More Secret Government

Last week I posted about the proposed Ant-Counterfeiting Trade
Agreement (ACTA). The issue is getting coverage in the blogosphere,
but none in the mainstream press at least in the U.S., which is
regrettable, since the issues raised are of great public interest.
Since my last blog, I have received information from Geneva and
national capitals that requires updating the blog, and a call to arms
to stop this monster dead in its tracks, to just say no to secret
government. It will take a determined, global effort to do so. ACTA is
the most extreme example yet of the devastating effect of making
intellectual property a trade issue. GATT/TRIPS is the most visible
example, but it is far from being the only one. A larger point about
TRIPS, regardless of the specific provisions contained within it, is
that it demonstrates the power shift away from those who traditionally
made copyright policy and to those who make trade policy. In the
United States, that is the United States Trade Representative, who
reports to the President.

The attitude of USTR toward copyright is a blinkered, one-sided view
that copyright is good and therefore as much of it as possible is even
better. But a view is just that unless there is political muscle to
implement it, and here lies the systemic danger, the fact that USTR is
in the driver=92s seat in initiating and negotiating agreements that are
cast as trade agreements, but which are in fact agreements
fundamentally reshaping substantive IP law. No trade official in any
country, no matter how well intentioned, should have that authority.
In the U.S., the power to make copyright policy vests exclusively in
the Congress. We do not want our trade representatives to negotiate on
their own agreements that require changes in domestic copyright laws
and then present the agreement after signature to the legislature as a
fait d=92accompli.

Use of the fait d=92accompli is not limited to trade representatives,
and is a disease encountered in other executive branch agencies. The
DMCA is an example of an attempted fait d=92accompli. Much to the
chagrin of its proponents, the DMCA ended up being only passed after
considerable hearings and congressional involvement, in large part due
to the fact that the Administration, in that instance through the PTO,
did not get everything it wanted from other countries in the 1996 WIPO
treaties, and hence couldn=92t completely rely on the fait d=92accompli
argument. Had it been able to do so the story would have been
different, and that is what the ACTA process is intended to achieve.
(I will add that it is a farce to accept comments from the public on
drafts you can=92t see, and on provisions that are dramatically expanded
after those comments are submitted).

ACTA is the most extreme example of this to date, and say what one
will about the DMCA =96 (and there is a lot that could be said), the
DMCA process was pretty open if ugly. This openness is attributable in
part to the persistence of Congressman Rick Boucher who was forceful
in articulating a different approach to the substantive issues, and to
the opposition of powerful communications companies. It was also open
because there were lengthy pubic meetings at WIPO, with daily reports
in a pre-blogger era that helped keep people who weren=92t in Geneva
informed of what was going on. While one may decry the results of
those treaties, as I do, the treaties were not written in secret.

With ACTA, none of this will take place: the agreement is being
negotiated in secret, and if the reports are accurate, it will then
presented to the public in December after the elections where it will
bind the next U.S. Administration. Not that things are better in
Europe. USTR is hardly the only one pushing for agreement and for
acting in secret: the EU was an early and enthusiastic advocate.

Here are the two comments I have received from reliable sources after
my last posting, neither of which knew of the other=92s comments, and
both of which are separated by thousands of miles. Here is the first:
=93The rumors of what is in the draft are pretty much all bad and the
scope is growing, not shrinking; it is even said that the latest
version has filtering language in it.=94 Here is the second: =93I have
been told that this secret treaty is going way beyond enforcement and
is basically attempting to re-open a lot of the issues in WCT/WPPT,
which is consistent with the leaked info re filtering.=94 The overriding
problem is not with any particular proposal (although there is lots
wrong with the proposals) but with a secret process, run by trade
representatives, trying to rewrite the laws on incredibly contentious
substantive issues that were thrashed out in public previously, but
are now being rewritten in secret and through the blinkered
perspective of trade, not copyright policy. People usually work in the
shadows because they are ashamed to work in the sunlight. It is up to
us to open the windows, otherwise they will stay shut and we will be
shut out from decisions that will seriously impact us, well beyond the
search of our laptops and iPods at borders and airports often-cited as
an example of how ACTA might work.

There is no reason why ACTA should not be opened up now. If it is
opened up, any false descriptions of its intent or provisions could
easily and effectively be dispelled. The failure to open it up now
speaks loudly about its proponents=92 purposes and our worst fears of
its substance.

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997