The United States Trade Representative (USTR) has announced today that it will be making the text of the Anti-Counterfeiting Trade Agreement (ACTA) available to the public on April 21st. Here is the portion of the press release that talks about the latest round of negotiations in New Zealand and the decision to release the text:
Participants had constructive and intensive discussions. They provided a much improved understanding of respective national regimes and how they worked in practice. Based on this understanding, good progress was made toward narrowing existing differences, in the areas of Civil Enforcement, Border Measures, Criminal Enforcement and Special Measures for the Digital Environment. In addition the participants held constructive discussions regarding the scope of intellectual property rights covered in ACTA.
Overall, therefore, there was a general sense from this session that negotiations have now advanced to a point where making a draft text available to the public will help the process of reaching a final agreement. For that reason, and based on the specific momentum coming out of this meeting, participants have reached unanimous agreement that the time is right for making available to the public the consolidated text coming out of these discussions, which will reflect the substantial progress made at this round.
It is intended to release this on Wednesday 21 April.
In addition, the press release also notes the importance of maintaining the confidentiality of national negotiating positions, implying that the released text, unlike recent leaks, will not have bracketed language revealing differences of positions among countries. As Prof. Michael Geist notes, there is no reason not to release the text even with language revealing differences of opinion among countries. He thinks that the condition that differences be resolved is one imposed by the U.S. and is a means for the U.S. to seek gains on the substance of the agreement.
Despite these concerns, we remain cautiously optimistic about the USTR’s decision to release the text. PK and many other public interest groups have long called for a public release of the ACTA text. However, such a release is not an end in itself. Rather, it is a means to allow the public to influence the substance of ACTA. So, the usefulness of a public release should be judged based on the USTR’s willingness to solicit public comment and, more importantly, change the ACTA text based on such comments. While the USTR has constantly said it is open to additional input, that input means little unless it is somehow reflected in the final product. Today’s press release does not mention a call for such comments. However, we hope that this will follow sooner rather than later. In view of USTR’s expressed intention to conclude ACTA by the end of the year, an early opportunity for the public to weigh in is necessary.
We will be analyzing the text of the agreement after its release. Be sure to check this blog for updates and analyses.