[Ecommerce] Michael Geist in the Star: Transparency needed on ACTA

[Thiru Balasubramaniam]

http://www.thestar.com/sciencetech/article/439551

Transparency needed on ACTA
TheStar.com - sciencetech
June 09, 2008
Michael Geist

Last week, Canadian negotiators huddled with representatives from the
United States, Europe and Japan at the U.S. Mission in Geneva to
negotiate the Anti-Counterfeiting Trade Agreement (ACTA).

The ACTA, shrouded in secrecy until a leaked summary of the agreement
appeared on the Internet last month, has sparked widespread opposition
as Canadians worry about the prospect of a trade deal that could lead
to invasive searches of personal computers and increased surveillance
of online activities.

While documents obtained under the Access to Information Act reveal
internal ACTA discussions as early as 2006, the trade negotiations
only came to the Canadian public's attention last fall when
International Trade Minister David Emerson revealed the government's
intention to participate in the negotiations.

Since the announcement, the Canadian government has been among the
most secretive of all ACTA negotiating partners. The Department of
Foreign Affairs conducted a public consultation on the treaty in
April; however, the government revealed little about either the timing
or substance of the agreement. By comparison, Australia launched a
public consultation on the treaty before committing to participate in
the ACTA talks.

Fears about the ACTA have spilled into the political arena as NDP MP
Charlie Angus last week voiced concerns about its effects during
Question Period in the House of Commons and Toronto-area Liberal MP
Bob Rae blogged that it "augurs a ridiculously intrusive national and
international apparatus to police practices that are as common as
eating and breathing."

With another round of talks set for next month in Japan, the
government should use the opportunity to pressure its trading partners
to lift the veil of ACTA secrecy. Trade negotiators may prefer to
remain outside of the spotlight, yet greater transparency is
desperately needed.

Public disclosure of the draft documents might put an end to fears
about iPod-searching border guards by clarifying the true intent of
the treaty. Moreover, it could focus attention on other key concerns,
including greater Internet service provider filtering of content,
heightened liability for websites that link to allegedly infringing
content and diminished privacy for Internet users.

Greater transparency would also lead to a more inclusive process. To
date, the ACTA negotiations have excluded both civil society groups as
well as developing countries. In fact, reports suggest that trade
negotiators have been required to sign non-disclosure agreements for
fear of word of the treaty's provisions leaking to the public. Given
the need for co-operation from all stakeholders to battle
counterfeiting concerns, an effective strategy requires broader
participation and regular mechanisms for feedback.

ACTA transparency would further ensure that Canada's domestic and
international counterfeiting strategies remain consistent. With
domestic anti-counterfeiting legislation currently in the works,
Industry Minister Jim Prentice could use the opportunity to highlight
his domestic and international anti-counterfeiting strategies.

Given the concerns associated with counterfeiting, an open ACTA also
promises to increase the effectiveness of anti-counterfeiting
activities. For example, there is general consensus that law
enforcement and regulators should prioritize health and safety
concerns that arise from counterfeit pharmaceutical activities.

Protecting Canadians from pharmaceutical fraud requires a
comprehensive approach, including confiscation of counterfeit and
expired drugs, regulatory action against unsafe marketing claims and
assurances that consumer health will not be placed at risk due to the
withholding of relevant research data.

If the leaked ACTA information is accurate, the current draft adopts a
much more limited approach by focusing on confiscating drugs, thereby
leaving Canadians vulnerable to pharmaceutical fraud.

With the ACTA speculation at a fever pitch, there is a sense that both
the U.S. and European Union are anxious to conclude negotiations by
the end of the year. Canadian officials should express reservations
about this aggressive timeline and insist that all parties open ACTA
to the public now.

Michael Geist holds the Canada Research Chair in Internet and E-
commerce Law at the University of Ottawa, Faculty of Law. He can
reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997