[A2k] MG: Canadian Govt. Keeps ACTA Consultation Results Under Wraps

[Robin Gross]

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[ Picked text/plain from multipart/alternative ]

http://www.michaelgeist.ca/content/view/3489/135/

Government Keeps ACTA Consultation Results Under Wraps
Monday November 03, 2008
Earlier this year, many Canadians were taken aback by reports of a
secret trade agreement that conjured up images of iPod-searching
border guards and tough new penalties for every day activities.  The
Anti-Counterfeiting Trade Agreement, currently being negotiated by
Canada, the United States, Japan, the European Union, and a handful
other countries, generated sufficient public concern such that then-
Industry Minister Jim Prentice specifically denied any links between
the treaty and proposed new legislation.

While the ACTA debate has largely disappeared from the public radar
screen, the negotiations continue. Over the summer, I reported about
attempts to establish a private consultation committee composed of
industry groups that excluded public interest organizations.  The
status of the consultation committee remains unknown, but my latest
technology law column (Toronto Star version, homepage version)
reports on newly obtained documents [13 MB] under the Access to
Information Act that provide additional insights into the secretive
nature of the negotiations as well as the results of a limited public
consultation conducted by the Department of Foreign Affairs in the
spring.

The documents confirm that two countries - the United States and
Japan - have emerged as the primary supporters and drafters of the
treaty.  Countries have met three times in recent months to discuss
elements of the treaty with those two countries providing draft
treaty language to the other participants just prior to the formal
meeting. For example, in late May, the U.S. and Japan forwarded draft
treaty language on new border measures provisions to the Canadian
delegation, two weeks before a round of talks in Washington.
According to Australian officials, subsequent meetings in Geneva and
Tokyo addressed statutory damages and criminal provisions for
unauthorized camcording. The next meeting is set for Brussels in
early December with Internet issues on the agenda.

Although bits of information about the meetings have leaked out,
participating countries have gone to great lengths to keep the
negotiations under wraps.  Countries are prohibited from discussing
the substance of the discussions and all documents are subject to
strict confidentiality conditions.  Secret negotiations are common
for trade agreements, however, international intellectual property
agreements have traditionally been conducted in a more open and
transparent manner.

The internal government documents also shed light into the results of
a brief Canadian consultation on ACTA.  Launched in April 2008, the
Department of Foreign Affairs consultation invited the public to
express their views on the treaty and the negotiation process (a
difficult chore given the limited public information currently
available).

While the Foreign Affairs has yet to publicly reveal the results of
the consultation (the department even refused to share individual
submissions with other Canadian government departments), an internal
draft report summarizing the responses notes that "individual
Canadian citizens were generally critical of Canada=92s role in the
formal negotiation of ACTA." Individual responses cited the lack of
transparency associated with the process, the absence of evidence
that a new treaty is needed, the exclusion of developing countries
from the negotiations, and the concern that ACTA might undermine
Canadian law.

The consultation also generated responses from 13 Canadian business
associations.  Many received personal invitations to participate in
the consultation from government departments as Canadian Heritage
alone notified 23 groups it considers its stakeholders.  These
business groups were not only generally supportive of ACTA, but some
asked for the inclusion of provisions that would necessitate
significant changes to Canadian law.  For example, one submission
recommended provisions mandating that Internet service providers
terminate Internet access in cases of repeated allegations of
infringement.  Another asked that the treaty make no distinction
between penalties for commercial and non-commercial infringement.

To date, it appears that ACTA is pushing Canada toward a host of new
international commitments that are drafted by officials in Washington
and Tokyo with virtually no public input. With the next round of
negotiations only weeks away, these new revelations reinforce the
necessity for new Industry Minister Tony Clement and Canadian
Heritage Minister James Moore to open the process to greater public
scrutiny and discussion.




IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
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