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Government Keeps ACTA Consultation Results Under Wraps

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Monday November 03, 2008
Appeared in the Toronto Star on November 3, 2008 as Treaty Consultation Process Snubs Public

Earlier this year, many Canadians were taken aback by reports of a secret trade agreement that conjured up images of iPod-searching border guards and tough new penalties for every day activities.  The Anti-Counterfeiting Trade Agreement, currently being negotiated by Canada, the United States, Japan, the European Union, and a handful other countries, generated sufficient public concern such that then-Industry Minister Jim Prentice specifically denied any links between the treaty and proposed new legislation.

While the ACTA debate has largely disappeared from the public radar screen, the negotiations continue. Over the summer, I reported about attempts to establish a private consultation committee composed of industry groups that excluded public interest organizations.  

The status of the consultation committee remains unknown, but newly obtained documents under the Access to Information Act provide additional insights into the secretive nature of the negotiations as well as the results of a limited public consultation conducted by the Department of Foreign Affairs in the spring.

The documents confirm that two countries - the United States and Japan - have emerged as the primary supporters and drafters of the treaty.  Countries have met three times in recent months to discuss elements of the treaty with those two countries providing draft treaty language to the other participants just prior to the formal meeting.

For example, in late May, the U.S. and Japan forwarded draft treaty language on new border measures provisions to the Canadian delegation, two weeks before a round of talks in Washington.  According to Australian officials, subsequent meetings in Geneva and Tokyo addressed statutory damages and criminal provisions for unauthorized camcording. The next meeting is set for Brussels in early December with Internet issues on the agenda.

Although bits of information about the meetings have leaked out, participating countries have gone to great lengths to keep the negotiations under wraps.  Countries are prohibited from discussing the substance of the discussions and all documents are subject to strict confidentiality conditions.  Secret negotiations are common for trade agreements, however, international intellectual property agreements have traditionally been conducted in a more open and transparent manner.

The internal government documents also shed light into the results of a brief Canadian consultation on ACTA.  Launched in April 2008, the Department of Foreign Affairs consultation invited the public to express their views on the treaty and the negotiation process (a difficult chore given the limited public information currently available).

While the Foreign Affairs has yet to publicly reveal the results of the consultation (the department even refused to share individual submissions with other Canadian government departments), an internal draft report summarizing the responses notes that "individual Canadian citizens were generally critical of Canada’s role in the formal negotiation of ACTA." Individual responses cited the lack of transparency associated with the process, the absence of evidence that a new treaty is needed, the exclusion of developing countries from the negotiations, and the concern that ACTA might undermine Canadian law.

The consultation also generated responses from 13 Canadian business associations.  Many received personal invitations to participate in the consultation from government departments as Canadian Heritage alone notified 23 groups it considers its stakeholders.  

These business groups were not only generally supportive of ACTA, but some asked for the inclusion of provisions that would necessitate significant changes to Canadian law.  For example, one submission recommended provisions mandating that Internet service providers terminate Internet access in cases of repeated allegations of infringement.  Another asked that the treaty make no distinction between penalties for commercial and non-commercial infringement.

To date, it appears that ACTA is pushing Canada toward a host of new international commitments that are drafted by officials in Washington and Tokyo with virtually no public input. With the next round of negotiations only weeks away, these new revelations reinforce the necessity for new Industry Minister Tony Clement and Canadian Heritage Minister James Moore to open the process to greater public scrutiny and discussion.     

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 mgeist@uottawa.ca or online at www.michaelgeist.ca.

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