Prime Minister Stephen Harper and the leaders of G8 countries closed their recent summit in Hokkaido, Japan by encouraging "the acceleration of negotiations to establish a new international legal framework, the Anti-Counterfeiting Trade Agreement (ACTA), and seek to complete the negotiation by the end of this year." The decision to fast-track the controversial ACTA has led to new momentum for the still-secret treaty as the Australian government recently disclosed that a new round of negotiations will commence this week.
The ACTA attracted considerable attention earlier this year after leaked documents revealed that the treaty could result in broad new surveillance requirements on Internet service providers as well as new powers for border guards cracking down on allegedly infringing activities. In fact, the concern grew so loud that Industry Minister Jim Prentice sought to assure Canadians that his recent legislative proposals would not result iPod searches at the border.
What Prentice did not reveal is that officials have been developing plans to establish an "insider" group comprised solely of government departments and industry lobby groups who would be provided with special access to treaty documentation and discussion.
According to documents obtained under the Access to Information Act, the government has been crafting an Intellectual Property and Trade Advisory Group. The initial plans for membership in the group were limited exclusively to 12 government departments and 14 industry lobby groups. These include the Canadian Recording Industry Association, the Canadian Motion Picture and Distributors Association, and the Entertainment Software Association of Canada [full list includes Canadian Anti-Counterfeiting Network, Canadian Chamber of Commerce Entertainment Software Association of Canada Canada's Research-Based Pharmaceutical Companies, Intellectual Property Institute of Canada, Retail Council of Canada, Canadian Recording Industry Association, Canadian Motion Picture and Distributors Association, Canadian Council of Chief Executives, Canadian Manufacturers and Exporters, Canadian Association of Importers and Exporters, Canadian Generic Pharmaceutical Association Underwriters Laboratories, and Canadian Standards Association].
The early membership lists omit several key industry representatives likely to be affected by ACTA, including telecommunications, technology, and Internet companies. Moreover, there is absolutely no representation of the public interest – no privacy representation despite the obvious privacy implications of the treaty (the Office of the Privacy Commissioner of Canada was not included on the government invitee list), no consumer representation despite the effects on consumer interests, and no civil liberties representation on a treaty that could fundamentally alter Canadian civil rights.
The government documents indicate that members would engage in "in-depth exchanges on technical negotiating issues" and therefore be required to sign confidentiality agreements in order to participate.
The decision to create a two-track approach for ACTA consultations appears to have been deliberate. The same documents discuss the prospect a public track that would include a general public consultation (which was held in April) along with the insider group that would be privy to treaty information.
The secretive Canadian approach stands in marked contrast to other countries. Australia has already launched two public consultations on the treaty – one to consider entry into the negotiations and the second to discuss substantive positions. Canadian groups tracking ACTA have been forced to rely on Australian documents to glean some insight into the treaty process.
Even the public consultative processes have been more transparent outside Canada. The United States Trade Representative, which managed the U.S. public consultation, has publicly posted copies of all responses it received to its consultation. Canadian officials have not provided any feedback on the results of its consultation nor any indication if they plan to disclose the responses they received.
Moreover, both U.S. and European Union officials have held open meetings with a broad range of groups to shed further light on the ACTA. There have been no similar meetings in Canada.
With Canadian law enforcement increasing their efforts to address counterfeiting activities – the RCMP recently shut down a major Ontario counterfeiting operation and a British Columbia court just awarded record damages against a distributor of counterfeiting products – there is a growing sense that Canada already has laws sufficient to address counterfeiting concerns. Few would challenge the need to combat counterfeiting, yet secretive, fast-track negotiations and insider consultations do little to inspire public confidence.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.