[A2k] Geist: Battle over ACTA heats up

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The Ottawa Citizen

March 31, 2009



Battle over top-secret treaty heats up



By Michael Geist



Next week, the Department of Foreign Affairs will conduct one of the
stranger consultations in recent memory.  Officials have invited roughly
70 stakeholder groups to discuss an international intellectual property
treaty that the U.S. regards as a national security secret and about
which the only substantive information has come from a series of
unofficial leaks.


Since then-minister David Emerson announced Canada's participation in
the Anti-Counterfeiting Trade Agreement negotiations in October 2007,
the ACTA has been dogged by controversy over the near-total lack of
transparency.

Early negotiations were held in secret locations with each participating
country (Canada, the U.S., the European Union, Japan, and Australia
among them) offering nearly identical cryptic press releases that did
little more than fuel public concern.

The participating countries conducted four major negotiation sessions in
2008 and though the first session of 2009 was postponed at the request
of the U.S. (which was busy transitioning to a new president), the
negotiations are set to resume later this spring.

When they do, negotiators will face two key challenges.

The first involves the mounting disagreement over transparency and the
value of releasing the current draft text to assuage public mistrust.


According to documents recently obtained under the Access to Information
Act, Canadian officials favour a transparent approach that would lead to
an early release of the draft text.

Marie-Lucie Morin, then the deputy minister of International Trade (and
now national security adviser to Prime Minister Stephen Harper), warned
International Trade Minister Stockwell Day in November that "should
there be no consensus among the ACTA partners to make the ACTA text
public, the Department will need to develop options to address Canadian
stakeholders' concerns about the lack of transparency in the ACTA
process."

Further, a department spokesperson has confirmed that plans to establish
an ACTA advisory group comprised of a few lobby organizations -- which
was the initial intent in the summer of 2008 -- have not gone forward.

Canada is not alone in supporting an open approach.

Earlier this month, the European Parliament passed a resolution calling
for the public availability of all ACTA materials.

Moreover, while the U.S. government has denied requests for access to
ACTA documents on national security grounds, reports indicate that it is
currently reviewing its approach.

Assuming that the documents are ultimately released to the public,
negotiators will then face an even tougher challenge: Addressing
concerns over the substance of the treaty.

While little has been officially confirmed, there has been a steady
stream of leaks in recent weeks that paint a picture of the treaty and
Canada's role in it.

The proposed treaty has six main chapters: (1) Initial Provisions and
Definitions; (2) Enforcement of Intellectual Property Rights; (3)
International Cooperation; (4) Enforcement Practices; (5) Institutional
Arrangements; and (6) Final Provisions. In addition to drafting two
"non-papers" that focus on institutional ACTA issues and procedural
matters, Canada supplied the draft text for the Institutional
Arrangements chapter at the most recent ACTA meeting in Paris in
December.

Most of the discussion to date has centred on the Enforcement of
Intellectual Property Rights chapter, which is divided into four
sections -- civil enforcement, border measures, criminal enforcement,
and the Internet. The first three sections were addressed in meetings
last year.

Although there is still considerable disagreement on the final text,
leaked documents indicate that the draft includes increased damage
awards, mandated information disclosure that could conflict with
national privacy laws, as well as the right to block or detain goods at
the border for up to one year.

Moreover, the criminal provisions go well beyond clear cases of
commercial infringement by including criminal sanctions such as
potential imprisonment for "significant willful copyright and trademark
infringement even where there is no direct or indirect motivation of
financial gain."

Jail time for non-commercial infringement will generate considerable
opposition, but it is the Internet provisions that are likely to prove
to be the most controversial. At the December meeting, the U.S.
submitted a "non-paper" that discussed Internet copyright provisions,
liability for Internet service providers, and legal protection for
digital locks.

The paper raised questions about damage awards, liability for hosting or
storing content, and the extent to which national digital lock
provisions mirror the U.S. approach.

This indicates that the United States is feeling out its negotiating
partners on the potential for an international version of its
much-criticized Digital Millennium Copyright Act.

The upcoming consultation demonstrates that Canadian officials are
working to address the transparency concerns. If the leaked documents
are accurate, however, public support for the treaty will require far
more than just greater openness.

Michael Geist holds the Canada Research Chair in Internet and E-
commerce Law at the University of Ottawa, Faculty of Law. E-mail:
mgeist@uottawa.ca

(c) Copyright (c) The Ottawa Citizen