Wednesday, November 25, 2009

Act against ACTA Secrecy

The governments of the United States, the 27 member countries of the European Commission, Japan, Switzerland, Australia, New Zealand, South Korea, Canada, and Mexico are negotiating a trade agreement named the Anti-Counterfeiting Trade Agreement (ACTA).  Despite the name, the agreement is designed to address not only counterfeiting, but a wide range of intellectual property enforcement issues, including civil and criminal enforcement, IPR in the Digital Environment, etc.. Thus, ACTA seems to be not just a simple trade agreement but something with much wider ramifications.

In most multi-lateral negotiations, generally, sunlight is usually considered the best disinfectant, mainly because secrecy cannot really be maintained over a long period. However, in this case, the specific details of ACTA have largely been kept secret. The United States Trade Representative (USTR) has refused to release even the agenda and lists of particpants for the June 2008 ACTA negotiating sessions. For over two years, the U.S. government has claimed the negotiations can be shielded from disclosure under laws protecting the national security of the United States. Two senators, Senators Bernie Sanders and Sherrod Brown have written to USTR, asking that the ACTA text be made public. Then, in response to sustained pressure for openness, the Obama administration began inviting lobbyists, corporate law firms and big companies to see the "national security" secret documents under non-disclosure agreements that by contract prohibit public criticisim or discussion of the ACTA text. 

I think this makes the secrecy even worse -- the fact that only interested pressure-groups are being allowed to see it and not the general public at large makes it seem that a conspiracy against the interests of the people who are kept in the dark (WIPO, developing countries, NGOs) is being cooked. More specifically, there is no evidence so far that ACTA contains safeguards embodied in Articles 1, 6, 7, 8, 40 and 44.2 of TRIPS, which together protect the public interest.  Further, the very fact that there is a different enforcement mechanism (not really necessary as there is a well-negotiated mechanism in TRIPS Articles 41, 44.1, 45, 46, 47, 50, and 61) gives rise to fears that the new provisions may be more restrictive or undemocratic in their impact.

The Australian Government and the Canadian Government defended the secrecy in an identically worded statement, thus:"A variety of groups have shown their interest in getting more information on the substance of the negotiations and have requested that the draft text be disclosed. However, it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation."

I think this secrecy is uncomfortable, and unjustifiable. Until the ACTA, nearly all global negotiations on multilateral intellectual property norms were comparatively much more open and transparent. See these documents 1 2 3 that lay down the extent of transparency in other multi-lateral negotiations.

However, maintaining secrecy is very difficult. There have been leaks of the ACTA text, which seem to suggest that the concerns over the lack of transparency are justified, in that they seem to bend to copyright pressure groups in imposing copyright industry demands on the global Internet, that will impose policing and infringement protection responsibilities on ISPs in the signatory countries. Worse is in store. And these represent only a minuscule portion of the text that has been leaked. What else lurks beneath is a real concern.

Why should India bother about ACTA?
As this commentator puts it, "Because ACTA is intended to create new global international IP enforcement standards, including these provisions will allow US negotiators to achieve what they have not been able to do to date – ensuring that the US's overbroad implementation of the WIPO Internet Treaty TPM obligations becomes the global standard."

India must be bothered about anything that might get pushed down its throat without its consultation or involvement. That's why.

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