[A2k] K. Corbin: Concerns Raised About Secrecy of IP Agreement (Google DC Talks on ACTA)

[Manon Ress]

http://www.enterprisenetworkingplanet.com/news/article.php/3857946
Concerns Raised About Secrecy of IP Agreement

     * January 11, 2010
     * By Kenneth Corbin

WASHINGTON -- The U.S. Trade Representative is in the midst of
negotiating a landmark intellectual property agreement with about
three dozen other nations that could dramatically reshape
international copyright enforcement and other matters of IP policy.

The problem for some is that almost no one knows what is actually in
the Anti-Counterfeiting Trade Agreement (ACTA), and those who do are
bound to silence by non-disclosure agreements.

Here at Google's policy outpost in the nation's capital, the search
giant hosted a panel discussion exploring some of the potential
ramifications of the agreement, which is supported by many of the
industries that suffer the most from copyright infringement, such as
the entertainment and software sectors.


Several of the panelists voiced concerns about the secrecy of the
negotiations, as well as its designation as an executive agreement,
rather than a treaty that would require congressional approval.

Despite the many unknowns surrounding the contents of the agreement,
it is generally understood as an effort to harmonize the efforts of
the participating nations to protect intellectual property rights.
That implies that some of the less controversial provisions will
involve mechanisms to improve cooperation among U.S. and foreign law
enforcement officials.

But of greater concern to advocates of progressive copyright and IP
policies is the fear that ACTA would alter the widely varying
provisions of IP law among the signatories. There is also the concern
that U.S. companies, including the host of today's event, could lose
some of the protections they currently enjoy under U.S. copyright law,
such fair use and the safe harbor clause in the Digital Millennium
Copyright Act.

"If this were just about counterfeiting, this would be a much shorter
and simpler discussion," said Jonathan Band, an attorney with the
eponymous firm Jonathan Band PLLC. His concern is that ACTA is likely
to snowball into an overly-broad IP omnibus agreement, spanning well
beyond counterfeit to include patents, trademarks, copyright and other
aspects of intellectual property.

The lone discussant on hand today to speak in support of ACTA was
Steve Metaliz, an attorney with the law firm Mitchell, Silberberg &
Knupp, which counts as clients several industry groups favoring the
treaty, including the Motion Picture Association of America, and
sought to dispel concerns that the agreement could circumvent Congress
and preempt U.S. law.

"This is being negotiated as an executive agreement that by my
understanding by definition has to be consistent with U.S. law,"
Metaliz said.

But that's small solace for critics who fear that the agreement could
lock U.S. policymakers into a binding multilateral agreement that
would freeze the nation's intellectual property laws as they stand
today.

"Even if it is now consistent with U.S. law, it will prevent Congress
and it will prevent the courts from allowing the law to evolve in the
future," Band said.

Similar concerns arose from Ryan Clough, the legislative counsel to
Rep. Zoe Lofgren, a California Democrat representing Silicon Valley.

Clough said Lofgren worries that Congress could be "hamstrung if we
want to revise U.S. copyright law to account for innovation," adding
that she and other members are also growing increasingly concerned
with the secrecy of the negotiations. "Only recently has this
agreement gotten congressional attention in any form," he said.

He also expressed concern that some of the countries where copyright
piracy is most pervasive, such as China and Russia, are not
participating in the ACTA negotiations.

For more outspoken critics like James Love, director of the group
Knowledge Ecology International, the U.S. involvement in the agreement
has all the trappings of a back-room power play on the part of
business lobbies like the U.S. Chamber of Commerce.

"The chamber and other groups believe that transparency doesn't work
to their advantage," Love said. "This is an example of Washington,
D.C. at its worst. This is an insider game."

But Metaliz was quick to remind the panel that in a multilateral
treaty with nearly 40 nations, U.S. business interests can't alone
dictate the terms of negotiation.

"The reality is that governments have to negotiate with governments,"
he said. "If you look at this in context, there is more transparency
relatively speaking in this than most previous trade agreements."

Metaliz envisions the agreement setting a baseline standard for global
IP protection along the lines of the U.S. Supreme Court's 2005 ruling
the MGM v. Grokster case, in which it held that a company whose
business model is predicated on enabling violating intellectual
property rights can be held liable for secondary infringement.

For Metaliz, that case, which was settled with a unanimous ruling,
represents a bright line distinction as far as the law is concerned,
one that he would like to see applied internationally.

"If you're going into business to get other people to infringe, that's
illegal," he said.

But others don't see the bright line in secondary infringement law,
and worry that if ACTA veers sets standards for that area of
intellectual property, it will invariably set new precedent for U.S.
law.

"The law here is very unstable and constantly evolving," Band said.
"When we're talking about coloring within the lines, the point is we
don't even know where the lines are."

Kenneth Corbin is an associate editor at InternetNews.com, the news
service of the internet.com network.

***************************************************************************
Manon Ress
manon.ress@keionline.org
Knowledge Ecology International
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.:  +1.202.332.2670, Fax: +1.202.332.2673

Il vaut mieux remuer une question, sans la d=E9cider, que la d=E9cider,
sans la remuer. (Pens=E9es, essais, maximes et correspondance de J.
Joubert  p.249)
Translation: It is better to debate a question without settling it
than to settle a question without debating it