[Ip-health] Huffington Post: White House creates secret process as solution to transparency for key IPR negotiation

[Judit Rius Sanjuan]

White House creates secret process as solution to transparency for key
IPR negotiation

By James Love, Director of Knowledge Ecology International
Huffington Post Blog
Source: http://www.huffingtonpost.com/james-love/white-house-creates-secre_=
b_322182.html
Posted: October 15, 2009 10:19 AM

The U.S. government has created a secret process for insiders to view
key negotiating documents for trade agreements -- as an alternative to
demands for more openness.
The particular negotiation in question is a controversial trade
agreement on the enforcement of intellectual property, referred to
under the inaccurate but emotive and prejudical title, the Anti-
Counterfeiting Trade Agreement (ACTA). So far, all of the negotiating
texts for ACTA are secret, as are even the names of persons attending
the negotiations.

There has been an extensive effort by many critics of ACTA to bring
the process out of the shadows. As pointed out in extensive detail by
NGOs, most multilateral and plurilateral IPR negotiation have been and
are now far more transparent. ACTA has been an exception.

To respond to criticism that the negotiations are non-transparent, and
captured by a handful of publishers and other IP owners, the White
House ironically decided to build upon an existing but flawed system
of advisory boards, that are stacked with well connected corporate
insiders to create a secret process to give some people access to the
documents under a non-disclosure agreement (NDA). The NDA declares
that the documents are protected as a matter of national security, and
provides for tough sanctions if secrecy is violated.

Under this approach, 32 persons with good Washington, DC connections
were allowed limited access to the ACTA negotiating text, and invited
to a secret White House roundtable to debate the provisions for
regulating the enforcement of IPR on the Internet. Only groups with
close ties to the technology industry were invited.

KEI got wind of this process in early September. USTR refused to tell
us who had been given access to the text under an NDA, on the grounds
that the release of the names would undermine the security of the
United States. We pursued a FOIA request, which was finally granted on
October 9. For damage control, the White House put out a statement to
press on its new consultation mechanisms, on the same day. Details of
this process, including the names of everyone who signed the NDAs, is
available in a detailed report here:

There are so many things wrong with this process it is difficult to
know where to start. Here are a few obvious points:

* NDAs were freely given out to Washington, DC lobbyists and law firms
representing big corporations. Among the 80 members of the
TransAtlantic Consumer Dialogue, just one group -- Public Knowledge --
was given the chance to sign an NDA. No academic experts were
included, and the general public was completely shut out.

* The White House can now control who can monitor its actions, and
limit criticism through contract. The NDA does not allow any public
substantive comment on the documents that are reviewed.

* The ACTA process is a stark contrast to the negotiations on the 1996
WIPO Internet treaties, where drafts were routinely made public and
placed on the Internet, and the public was given opportunities to
comment via federal register notices. Now you can make comments, but
without knowing what you are commenting on.

If this approach was applied to Congress, selected lobbyists would be
allowed to see drafts of bills, but the press and the public would
have to wait until the bill became law, to know what had happened.

All of this seems pretty out of sync from the transparency memo the
White House issued on the first day of the Obama Administration.

More background available here:
=09=95 March 12, 2009, Obama Administration Rules Texts of New IPR
Agreement are State Secrets..
=09=95 March 14, 2009 compilation of number of news stories about the ACTA
transparency issue.
=09=95 March 20, 2009, the Obama White House promised a detailed review of
transparency policies at USTR.
=09=95 July 22, 2009, several NGOs write USTR about transparency
=09=95 September 28, 2009. Michael Masnick, USTR: We Can't Be Open About
ACTA Because We Promised We Wouldn't Be (*Lobbyists Not Included) from
the missing-the-point dept, Tech Dirt.
=09=95 October 13, 2009, White House shares the ACTA Internet text with 42
Washington insiders, under non disclosure agreements
=09=95 Andrew Noyes, List Of IP Treaty Readers Revealed, National Journal
Online, October 13, 2009.
=09=95 October 13, 2009. Cory Doctorow, Meet the 42 lucky people who got
to see the secret copyright treaty, BoingBoing.Net.
=09=95 October 14, 2009. Michael Masnick, ACTA Negotiations Back On...
White House Shows Small Group Proposed Text Under NDA, from the but-
what-about-the-public dept, Tech Dirt..
=09=95 October 14, 2009. Andrew Noyes, IP Watchdog FOIAs USTR (Again),
Tech Daily Dose, National Journal Online,.
=09=95 October 14, 2009. David Kravets, Special Interests See 'Classified'
Copyright Treaty; You Can't, Threat Level, Wired.
=09=95 October 15, 2009. Nate Anderson, Secret ACTA treaty can't be shown
to public, just 42 lawyers, Ars Technica,
Follow James Love on Twitter: www.twitter.com/jamie_love