Public Knowledge and other public interest organizations have been calling for transparency in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations since the United States Trade Representative (USTR) started the negotiation process. The Freedom of Information Act (FOIA) requests file by PK, EFF, and KEI are a testimony to this fact. Continuing this saga, PK and 15 other public interest, library, artist advocacy, and civil rights organizations sent a letter to the President yesterday, urging him to keep his promise of making government more open, transparent, and participatory and release the ACTA text.
The recently concluded negotiation of the Internet section of the Anti-Counterfeiting Trade Agreement (ACTA) in Seoul, South Korea lends urgency to this call for transparency. As Prof. Michael Geist has reported, a memo prepared by the European Commission (EC), one of the ACTA negotiation parties, explaining the provisions in the Internet chapter authored by the U.S. has leaked on the Internet and has raised fears that the Internet provisions of ACTA might further harm the already fragile rights users of digital content have. According to Prof. Geist ACTA’s Internet provisions may require countries to impose liability on Internet Service Providers (ISPs) for actions of their subscribers, provide certain safe harbors based on the ISPs instituting policies to prevent unlawful storage and transmission of infringing content and terminating customer access in appropriate circumstances, and require all negotiating parties to enact DMCA-type DRM regimes.
ACTA threatens other harms as well. As the letter notes:
With respect to ACTA’s substance, we remain concerned that the terms may not adequately account for all of the interests that would be affected. Intellectual property law requires a balance between the benefits conferred upon creators and the rights of the general public to access and use those creations in free discourse and for the public good. Yet the public and the industries enabling such uses would face crippling liability under an improperly calibrated intellectual property regime. ACTA could increase the risk of participating governments taking an imbalanced approach.
The letter also notes that negotiating ACTA as a trade agreement is problematic. Traditionally trade agreements have related to regulating tariffs on physical goods. While intellectual property (IP) has gradually been dragged under the umbrella of trade, it has always been like fitting a square peg in a round hole. The revenue maximization motive that applies to trade agreements cannot be reconciled with purpose of IP law: to promote progress by encouraging creativity and innovation while also protecting user rights. Yet because of the its trade bias, the USTR is likely to look at itself as the protector of the interests of major copyright and patent owners at the expense of innovators and consumers. Further, these interests, through their membership in the secretive trade advisory committees, are assured better access and greater ability to influence the USTR’s position.
Breaking from its practice so far, the USTR allowed a broader group of interests to view the Internet chapter of ACTA albeit under non-disclosure agreements. I was one of the people who saw the text. While I felt that seeing the text allowed me to learn more about the agreement and provide some public interest perspective to the negotiators, I certainly did not feel like the process was in anyway sufficient to protect those interests. As the letter notes:
We appreciate USTR’s efforts to broaden access to the draft section and to solicit a broader range of views than is typically available through the ITAC structure. However, only a few public interest organizations were invited to view the text, while a much larger number of industry representatives have been granted access. More importantly, no amount of restricted access can substitute for open and public discussion of such a critical document.
Only if the texts are made public will there be room for debate about the benefits or harms the agreement would cause. Only real transparency will bring public pressure to bear on the government to stop it from pursuing policies that favor well-established industry interests at the expense of innovators and the broader public. Let us hope that this time around the administration finally heeds our call for transparency.