[A2k] Essential Action submission to USTR re ACTA

[Manon Ress]

From: Sarah Rimmington <srimmington@essentialinformation.org>
Date: September 17, 2008 2:45:47 PM EDT

Here are the comments Essential Action submitted to USTR today in
advance of next Monday's meeting with officials from the Commerce
Department and USTR.  We referenced our March 21 submissions and made
no additional substantive comments.  We did, however, complain about
the secrecy of the negotiations and called on the USTR to disclose
drafts of the negotiating text plus background documents, referencing
the recent global sign-on letter many of you endorsed.
A representative of Essential Action will be at the September 22
meeting.
Regards,
Sarah


September 17, 2008

Office of the U.S. Trade Representative
600 17th Street, N.W.
Washington, DC 20508
E-mail: ACTA@ustr.eop.gov

Re: Comments for 09/22/08 Public Meeting on the Anti-Counterfeiting
Trade Agreement (ACTA)

To the U.S. Trade Representative:

Essential Action is a project of Essential Information, a non-profit
501(c)(3) organization based in Washington, D.C. We are concerned
generally with protecting the public domain and the information
commons. A key organizational area of focus is promoting access to
medicines, including in the United States and especially in developing
countries. We are concerned as well with preservation and protection
of the public domain, and consumer protections in general.

On March 21, 2008, we submitted comments on ACTA focused on its
potential impact on access to medicines. Those comments are available
here:

http://www.essentialaction.org/access/index.php?/archives/131-Comments-on-Proposed-Anti-Counterfeiting-Treaty.html#extended

Because USTR and the other ACTA negotiators have failed to release the
ACTA negotiating text, or even relevant background documents or
meeting agenda, we have no additional substantive comments to add.

We do want to call attention to, and urge correction of, the
illegitimate process by which the ACTA talks are proceeding. There is
no conceivable rationale for the cloak-and-dagger aura around the
talks, and the refusal to disclose draft texts and relevant background
documents.

USTR staff have claimed that it is standard for trade talks to be
conducted in secrecy. This claim is mistaken. In fact, negotiating
texts are commonly made public in multilateral trade negotiations.
Examples of negotiations where texts are or were made public include:

The current Doha Round negotiations at the World Trade Organization;

http://www.wto.org/english/tratop_e/dda_e/dda_e.htm

The Free Trade Area of the Americas;

http://www.ftaa-alca.org/FTAADraft03/Index_e.asp

The Multilateral Agreement on Investment (although initial texts were
not made public)

http://www.oecd.org/document/35/0,3343,en_2649_33783766_1894819_1_1_1_1,00.html

Draft text at the World Health Organization, where resolutions are
published in advance of consideration and treaty or treaty-like
negotiations are handled openly, including this example of follow-on
negotiations for the Framework Convention on Tobacco Control:

http://www.who.int/gb/fctc/

The World Intellectual Property Organization, including this example
of a draft Treaty on the Protection of Broadcasting Organizations:

http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=57213

It is true that some trade talks, including U.S. bilateral free trade
negotiations, are conducted in secrecy. But this is no rationale for
secrecy in the ACTA context, for several reasons. First, it is
illogical for USTR to point to its own practice of demanding secrecy
as a justification for secrecy in this case. Second, even if secrecy
were the norm, there is no argument to be made for following a bad,
self-imposed policy just because of precedent. Third, if there is any
logic to the secrecy in bilateral talks (and we do not believe a good
case can be made), it is that negotiators necessarily are discussing
benefits and sacrifices for different national industry groups, and if
the industry groups were able to respond to every proposal, the
negotiation might be bogged down. But this argument has no relevance
to the ACTA context. Are negotiators worried that counterfeiters might
seek to influence the negotiations?

More than 100 organizations from around the world, along with leading
academics and other individuals, recently sent Ambassador Schwab and
other ACTA negotiators a letter calling for the draft treaty text to
be made public.

The letter emphasizes why openness and disclosure is so important in
this case. The letter raises a number of potential substantive
concerns about the draft treaty, noting that the public cannot assess
the validity of such concerns, because the draft terms remain secret.
The letter further states,

Equally, because the treaty text and relevant discussion documents
remain secret, treaty negotiators are denied the insights and
perspectives that public interest organizations and individuals could
offer. 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.

The lack of transparency in negotiations of an agreement that will
affect the fundamental rights of citizens of the world is
fundamentally undemocratic. It is made worse by the 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.

We have attached a copy of the sign-on letter to this comment.

Before any further negotiations occur, we strongly urge you to make
public the draft text of the Anti-Counterfeiting Trade Agreement,
along with pre-draft discussion papers, the agenda for negotiating
sessions and treaty-related meetings, and a list of participants in
the negotiations.

Sincerely,

Robert Weissman,
Director


--
Sarah Rimmington
Attorney
Essential Action, Access to Medicines Project
Washington, DC
Tel: (202) 387-8030
Cell: (202) 422-2687
www.essentialaction.org/access/