[A2k] Bridges: Secretive ACTA negotiations under scrutiny

[Judit Rius Sanjuan]

BRIDGES Weekly Trade News Digest - Vol. 12, Number 33 8 October 2008

SECRETIVE ACTA NEGOTIATIONS UNDER SCRUTINY

Have you ever downloaded music off the internet for free? If so, do
you feel like a criminal?

Digital rights activists are concerned that an intellectual property
rights enforcement treaty being negotiated in secretive talks by a
handful of mostly industrialised countries could criminalise file
sharing over the internet even if it was not done for commercial
purposes.

The prospective Anti-Counterfeiting Trade Agreement (ACTA), they warn,
could cause travellers' laptop computers and iPods to be subject to
border searches for illicit music or movies. The fair use of
copyrighted materials could be threatened, impeding innovation, and
internet service providers could be required to monitor customers'
use, at the expense of privacy. Internet company Google "believes
strongly" that the treaty should not address internet issues at all.

Generic drug manufacturers and public health groups warn that if
improperly structured, the ACTA could conflate dangerous counterfeit
drugs with medicines that have been controversial for separate reasons
related to intellectual property, thus impeding access to low-cost
copies of patented drugs produced under compulsory licence, or drugs
obtained by 'parallel importation' from countries where they are
cheaper.

Strong support for the ACTA comes from the movie and recording
industries, which cite major losses due to piracy and counterfeiting.

Governments involved in the talks insist that the accord's main target
would be commercial-scale activities, on the grounds that existing
rules on intellectual property enforcement do not suffice. Australia,
Canada, the EU, Japan, Jordan, Korea, Mexico, Morocco, New Zealand,
Singapore, Switzerland, the United Arab Emirates, and the US are
involved in the discussions.

Each of the developing countries participating in the negotiations has
already signed a bilateral free trade agreement with Washington,
typically including intellectual property protections that go beyond
what is provided for in WTO rules. China, which the US has repeatedly
fingered for counterfeiting and piracy, is not part of the talks.

The negotiations started in earnest earlier this year, with a focus on
developing a legal framework as well as provisions for cooperation on
intellectual property rights enforcement. The Group of Eight leading
industrialised nations' summit in July urged negotiators to reach a
deal by the end of 2008.

Critics of the ACTA negotiation process openly acknowledge that their
concerns could well be unjustified; it's just that the secrecy of the
talks makes it impossible to find out.

"Because the text of the treaty and relevant discussion documents
remain secret, the public has no way of assessing whether and to what
extent these and related concerns are merited," said a letter to the
ministers of the participating countries signed by dozens of
individuals and civil society groups from all over the world,
including Essential Action, the Electronic Frontier Foundation,
Knowledge Ecology International, M=E9decins Sans Fronti=E8res, and Third
World Network.

The letter, dated 15 September, said that "public review of the texts
and a meaningful ability to comment would, among other benefits, help
prevent unanticipated pernicious problems arising from the treaty.
Such unforeseen outcomes are not unlikely, given the complexity of the
issues involved." In addition to criticising the lack of transparency
in the negotiations as "fundamentally undemocratic," the letter points
to a "public perception that lobbyists from the music, film, software,
video games, luxury goods and
pharmaceutical industries have had ready access to the ACTA text and
pre-text discussion documents through long-standing communication
channels."

A few days later, two of the organisations, Electronic Frontier
Foundation (EFF) and Public Knowledge, filed a lawsuit against the US
trade representative's office demanding information about the ACTA
negotiations, including records about the USTR's discussions with
other governments and pro-ACTA business groups.

In their complaint to the US district court for the District of
Columbia, EFF and Public Knowledge said that they had not received any
response from the USTR's office to their June and July requests for
such information under the Freedom of Information Act. Neither group
has received a response to the lawsuit thus far.

Even the US Senate's influential Judiciary Committee has expressed
some qualms about the ACTA negotiations, though applauding the move to
strengthen intellectual property protections. In a 2 October letter to
USTR Susan Schwab signed by Democratic Chair Patrick Leahy and Arlen
Specter, the ranking Republican, the committee expressed an
"institutional" concern that ACTA, "if not drafted with sufficient
flexibility, could limit Congress's ability to make appropriate
refinements to intellectual property law in the future." This concern
was "compounded=85 by the lack of transparency inherent in trade
negotiations and the speed with which the process is moving."

While government officials almost invariably negotiate trade
agreements behind closed doors, based on the logic that negotiators
need the privacy to make trade-offs that hurt some sectors but are
beneficial overall, the degree of secrecy varies. For instance, draft
negotiating texts at the WTO are now made public almost immediately
upon release. This is not the case for most bilateral free trade
agreements.

USTR officials say that there is no comprehensive draft ACTA text yet,
since it is still in the middle of negotiations.

Asked about the absence of publicly available negotiating documents
from the ACTA talks, Scott Elmore, a spokesperson for the US trade
representative's office, told Bridges that "we are treating these
negotiations similarly to FTA processes." In those negotiations, he
explained, future treaty language is only made public "after the
parties have agreed to the actual text."

As for the information requested by EFF and Public Knowledge, Elmore
said that the USTR's office had received no less than nine
intellectual property-related Freedom of Information Act requests in
June, and was working "diligently" to respond to all of them.

Elmore said that the USTR had been working closely with lawmakers on
the ACTA negotiations. "We are confident we can find ways to build
vital disciplines for combating intellectual property theft while
fully respecting existing US law and legislative prerogatives," he
said. "The IP enforcement provisions of our FTAs have succeeded in
this regard, and so will the ACTA."

Many of the concerns about the contents of a potential ACTA were
voiced at a public hearing held by the USTR's office on 22 September.
The concerns were spurred by copyright-owning industry submissions to
the USTR, as well as one of relatively few documents on the
negotiating framework to come to light: a four-page "discussion paper"
posted in May on Wikileaks, an online repository of leaked sensitive
documents.

The measures suggested in that paper include authorising governments
and border officials to take action against intellectual property
right infringers without a prior complaint by the right holders, or to
seize and destroy IPR-infringing goods and their components. Also
proposed was a legal regime "to encourage internet service providers
to cooperate with right holders in the removal of infringing
material," albeit with safeguards from liability.

In its submission to the public hearing, EFF warned that one proposal
from a "major copyright owner industry group" to require internet
services providers to adopt "technical measures" such as filters and
network monitoring would "directly threaten citizens' privacy rights."
And since such filters could be defeated by encryption technology, it
said that they may not even be effective at curbing copyright
violations. Furthermore, it said that adopting such measures would
make it more likely that internet service providers would be "deemed
to have constructive knowledge" of copyright violations taking place
on their networks, thus disqualifying them from protective 'safe
harbours' in US law. Google said that safe harbours should be outside
the scope of the ACTA talks, and that if included, "passive carriers"
such as search engines and blogs should remain covered.

The Senate Judiciary Committee letter had specifically urged Schwab
"not to permit the agreement to address issues of liability for
[internet] services providers or technological protection measures."

Knowledge Ecology International warned that the ACTA could effectively
curb a type of compulsory licensing ordinarily permissible under WTO
intellectual property enforcement rules (TRIPS Agreement Part III). In
response to patent holders seeking court injunctions to get others to
stop using their intellectual property, courts in the US and elsewhere
have in certain cases awarded them royalty payments - but nothing
more. This is tantamount to a compulsory licence - but could be
prohibited if ACTA rules on injunctions turn out to be more
restrictive than WTO law (as the EU has sought in other trade
agreements).

The International Trademark Association and BASCAP, the International
Chamber of Commerce's anti-counterfeiting and piracy initiative,
expressed "continued support" for the US' involvement in the ACTA
talks. In a June submission to the USTR, the groups called for
expanded power for law enforcement and customs authorities to initiate
criminal actions on their own initiative as well as at rights holders'
behest. (Criminal offences can carry jail time; civil offences
typically involve fines.)

Quite aside from the content of the prospective treaty, IP Justice, a
San Francisco-based civil liberties group, has called ACTA
"imperialistic," criticising the fact that it is being negotiated
primarily among industrialised nations. The organisation, whose stated
purpose is to promote balanced intellectual property law and freedom
of expression, claims that ACTA "attempts to regulate global IPR
enforcement from the perspective of the world's wealthiest and to the
detriment of the needs of developing nations and the global public
interest." It said that developing countries "will be expected to
abide" by ACTA's terms.

IP Justice said that ACTA would require governments to spend billions
of dollars' worth of taxpayers' money on local and national law
enforcement, border agencies, customs controls, and local courts, with
the benefits accruing to a relatively narrow number of intellectual
property holders.

A "fact sheet" on the USTR website says that the ACTA would be a
"leadership agreement," anticipating future participation by countries
"that aspire to strengthen IPR enforcement." It said that ACTA would
strengthen "the international fight against pirates and counterfeiters
who steal from businesses and workers, discourage innovation and
creativity, threaten health and safety, provide an easy source of
revenue, and cause loss of tax revenue."

The next round of talks on the ACTA is set to take place in Tokyo from
8-10 October.

ICTSD reporting; "Transparency needed on ACTA," TORONTO STAR, 9 June
2008; "Anti-Counterfeiting Trade Agreement: Fact or Fiction,"
WIRED.COM, 15 September 2008.



Judit Rius Sanjuan
Attorney
Knowledge Ecology International / Essential Information
www.keionline.org / www.cptech.org
Phone: +1.202.332.2670, x18