ACTA: How not to negotiate wide-ranging bilateral agreements

Bilateral and multilateral trade agreements are strange beasts. They are usually drafted to get two countries or regions to open up their markets, therefore contain all sorts of harmonising provisions which will bring the contracting parties’ laws closer to one another in order to ease trade. One of the topics that is usually the subject of harmonisation is IP policy, as there are several important trade-related aspects of intellectual property rights. The United States has initiated and conducted several trade agreements in the past decade which has resulted in major IP overhaul in the contracting states (see DR-CAFTA).

The US Trade Representative and the European Commission have been drafting the Anti-Counterfeiting Trade Agreement (ACTA). Up until recently, little was known about the agreement other than the negotiation was shrouded in secrecy, which made a lot of people understandably nervous. After all, this is an IP infringement agreement that has the potential to export draconian IP measures to contracting states. Since 2007, documents have been leaked through Wikileaks, and more recently, there has been renewed interest in the topic due to more details that have emerged about suggested provisions that include three strikes disconnection and criminalisation for non-commercial infringement.There has been much written on the subject already, including the cited links. Michael Geist’s coverage is the first place to go to get all of your ACTA information.

Although we are just starting to get glimpses of what ACTA will bring to the table, one thing that worries me is the lack of transparency in the negotiation process. Why is there reluctance to air some of the proposals? Is it because the drafters fear the type of response that the agreement is getting online? Sure, those who care about this sort of thing are only the digerati, twitterati and bloggerati, in other words, the same old vocal digital minorities that like to complain about copyright anyway. So why hide the agreement? Most free trade agreements are generally drafted openly, with the various negotiating rounds being subject to outside scrutiny. Why do we have so much secrecy on this occasion?

In a very damning leak posted in Wikileaks, even the European Commission seems to have expressed concern about the lack of transparency. Here we get a glimpse of the unilateral and closed nature of the drafting process:

“US reported that they have been working on a draft text since the end of the 5th round (end of July) and that this was basically finalised. However, they are still involved in internal consultations with other government agencies and a number of private stakeholders (bound to strict confidentiality clauses), therefore they were not willing to share with COM (or even to show us) the text at this stage.”

Hmmm… so only a few stakeholders have been shown the draft. I would bet my iPod that those stakeholders include the MPAA, the RIAA, and other content industries, but do not include consumer organisations. The European Commission describes the content of the Internet provisions:

Section 1: Baseline obligations inspired by article 41 TRIPs, imposing adequate and effective legal remedies, as provided in relevant sections of ACTA (civil, penal), for internet infringements.

Section 2: ACTA members have to provide for third-party liability.

Section 3: Safe-harbours for liability regarding ISPs, based on Section 512 of the Digital Millennium Copyright Act (DMCA)2, including a preamble about the balance between the interests of internet service providers (ISPs) and right-holders.

Section 4: Will focus on technical protection measures (TPMs). Language inspired by US-Jordan Free-Trade Agreement (article 4.13)4, as well as by the WIPO Internet Treaties (articles 11 WCT and 18 WPPT)

Section 5: Will focus on Rights’ Management. Language inspired by US-Jordan Free-Trade Agreement (article 4.13)5, as well as by the WIPO Internet Treaties (articles 11 WCT and 18 WPPT)

As some have pointed out, there is nothing inherently worrying here, we already have some provisions in this regard based on existing treaties, and as noted, the U.S. has already exported some of its DMCA provisions to other countries. The problem with this view is that these bilateral agreements export the draconian enforcement part of American copyright law as exemplified by the DMCA, but they do not export the good things. The U.S. has an open-ended and wide-ranging exception and defence regime in the shape of Fair Use, and the periodic revision of exceptions conducted by the Library of Congress. These provisions are not included in the agreements, which means that countries such as the UK which have a much less flexible system such as fair dealing will get maximum enforcement without the exceptions.

Hopefully, the negotiation process will be opened up, and we will be able to get a clearer picture of what is being proposed. I am personally rather concerned about what I have read so far.

Update: Here is a list of those who have seen ACTA so far.

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