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An ACTA Call to Arms: No More Secret Government

By Senior Copyright Counsel, Google Inc.

Last week I posted about the proposed Anti-Counterfeiting Trade Agreement (ACTA). The issue is getting coverage in the blogosphere, but none in the mainstream press at least in the U.S., which is regrettable, since the issues raised are of great public interest. Since my last blog, I have received information from Geneva and national capitals that requires updating the blog, and a call to arms to just say no to secret government. ACTA illustrates the negative effect of making intellectual property a trade issue. GATT/TRIPS is the most visible example, but it is far from the only one. TRIPs illustrates an important systemic point: the power shift away from those who traditionally made copyright policy, and to those who make trade policy. In the United States, the latter category means the United States Trade Representative.

The attitude of USTR toward copyright is a blinkered, one-sided view that copyright is good and therefore as much of it as possible is even better. But a view is just that unless there is political muscle to implement it, and here lies the systemic danger, the fact that USTR is in the driver?s seat in initiating and negotiating agreements that are cast as trade agreements, but which are in fact agreements fundamentally reshaping substantive IP law. No trade official in any country, no matter how well intentioned, should have that authority. In the U.S., the power to make copyright policy vests exclusively in the Congress. We do not want our trade representatives to negotiate on their own agreements that require changes in domestic copyright laws and then present the agreement after signature to the legislature as a fait d?accompli.

Use of the fait d?accompli is not limited to trade representatives, and is seen in other executive branch agencies. The DMCA is an example of an attempted fait d?accompli. Much to the chagrin of its proponents, the DMCA ended up being only passed after considerable hearings and congressional involvement, in large part due to the fact that the Administration, in that instance through the PTO, did not get everything it wanted from other countries in the 1996 WIPO treaties, and hence couldn?t completely rely on the fait d?accompli argument. Had it been able to do so the story would have been different, and that is what the ACTA process is intended to achieve, a result that legislatures will have to accept, unless they are willing to permit the country to be in conflict with an important trade agreement.

Say what one will about the DMCA ? (and there is a lot that could be said) -- the DMCA process was pretty open if ugly. This openness is attributable in part to the persistence of Congressman Rick Boucher who was forceful in articulating a different approach to the substantive issues, and to the opposition of powerful communications companies. It was also open because there were lengthy pubic meetings at WIPO, with daily reports in a pre-blogger era that helped keep people who weren?t in Geneva informed of what was going on. While one may decry the results of those treaties, as I do, the treaties were not written in secret.

With ACTA, none of this will take place: the agreement is being negotiated in secret, and if the reports are accurate, it will then presented to the public in December after the elections where it will bind the next U.S. Administration. Not that things are better in Europe. USTR is hardly the only one pushing for agreement and for acting in secret: the EU was an early and enthusiastic advocate.

Here are the two comments I have received from reliable sources after my last posting, neither of which knew of the other?s comments, and both of which are separated by thousands of miles. Here is the first: ?The rumors of what is in the draft are pretty much all bad and the scope is growing, not shrinking; it is even said that the latest version has filtering language in it.? Here is the second: ?I have been told that this secret treaty is going way beyond enforcement and is basically attempting to re-open a lot of the issues in WCT/WPPT, which is consistent with the leaked info re filtering.? The overriding problem is not with any particular proposal (although there is lots wrong with the proposals) but with a secret process, run by trade representatives, trying to rewrite the laws on incredibly contentious substantive issues that were thrashed out in public previously, but are now being rewritten in secret and through the blinkered perspective of trade, not copyright policy.

There is no reason why ACTA should not be opened up now. If it is opened up, any false descriptions of its intent or provisions could easily and effectively be dispelled. The failure to open it up now speaks loudly about its proponents? purposes and our worst fears of its substance.

Full post as published by The Patry Copyright Blog on June 03, 2008 (boomark / email).