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Why The Lack of ACTA Transparency Is Not Standard

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Thursday November 19, 2009
In the face of widespread criticism of the lack of ACTA transparency, participating governments and music industry lobbyists have claimed that the transparency issue is much ado about nothing.  As governments seek to keep relevant information secret, those same governments released a joint statement last week arguing that "it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation."

It is important to emphatically state that this is simply not the case for many multilateral agreements and the activities of international organizations that typically serve as the forum for global agreement discussions.  U.S. NGO groups have made a strong case for how ACTA's lack of transparency is out-of-step with many other global norm setting exercises.  With regard to international fora, they note that the WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law, and an assortment of other conventions have all been far more open than ACTA.  For example, it notes that the WIPO Internet treaties, which offer the closest substantive parallel to the ACTA Internet provisions, were by comparison very transparent:
The two WIPO Internet Treaties (WCT and WPPT) were negotiated in a completely open meeting at the Geneva Convention Center. The public was allowed to attend without accreditation. The draft texts for the WCT and the WPPT were public, and the U.S. government requested comments on the draft texts, which were available, among other places, from the U.S. Copyright Office.

Two other documents offer similar reviews of the transparency of negotiation documents and opportunities for public participation.  The inescapable conclusion is that the ACTA approach is hardly standard.  Rather, it represents a major shift toward greater secrecy in the negotiation of international treaties on intellectual property in an obvious attempt to avoid public participation and scrutiny.
Comments (9)add comment

Barry Sookman said:

...
The government’s practice with respect to the negotiation of international agreements and treaties is summarized in International Treaties: Canadian Practice, Government of Canada, April 3, 2000, http://bit.ly/3HsAM2 as follows:

In Canada, debate on the negotiation and adoption of international trade liberalization agreements over the past 15 years has revealed that Parliament and Members of Parliament play only a small part in the negotiation and ratification of international treaties.

The executive branch of the federal government in fact controls all stages of the process. This control extends to the content of the negotiations, which are often conducted in secret. Moreover, this secrecy is a significant factor in the federal government’s negotiating strategy. Nothing, or almost nothing, is made public before the parties have reached an agreement in principle on the content or even the wording of the treaty.

The Government is applying this well established principle to the ACTA negotiations. According to the Government:

A variety of groups have shown their interest in getting more information on the substance of the negotiations and have requested that the draft text be disclosed. However, it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation. This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues. At this point in time, ACTA delegations are still discussing various proposals for the different elements that may ultimately be included in the agreement. A comprehensive set of proposals for the text of the agreement does not yet exist. The Anti-Counterfeiting Trade Agreement – Summary of Key Elements Under Discussion, Foreign Affairs and International trade Canada, November 6, 2009, http://bit.ly/3h0BdP

My blog which deals with this issue and other issues related to the ACTA debate is at http://www.barrysookman.com/20...slag-acta/

November 19, 2009

A. Rebentisch said:

Not quite
The trick is a trade agreement procedure. Trade agreements are usually supposed to be non-regulatory and subject to confidential negotiations. Simple forum shopping. Traditional "international agreements" are not only negotiated in the open, they are also consensus based.

For bilateral trade agreements the transparency rules are common usw. See also
http://bilaterals.org/rubrique.php3?id_rubrique=33&lang=en
for a larger perspective.
November 19, 2009

Spike said:

Barry Sookman CRIA Puppet
Why should we believe anything that a registered CRIA lobbyist has to say? You're all for pushing draconian copyright laws in Canada.

All you have been doing lately is threatening/trying to shut down my employer (you know who), and spread constant propaganda about how Canada is a "pirate site" haven (ignorantly ignoring the fact that we are a Canadian company run by Canadians from the beginning), as well as your steady slagging off of Michael Geist every chance you have for doing what he does best, helping the public fight against this nonsense.

I also know for a fact that you're just salivating over the 3rd party liability clauses and global DMCA on steroids/3 strikes approach that ACTA has to offer. If you don't already have full access to the treaty and are involved in the negotiations, I'm sure the leaks just made you a very happy man. Its everything you and the corrupt CRIA could of dreamed of.

Enough has been leaked already on ACTA that we are able to come to our own conclusions about it without Geist's help in doing so, thank you very much.
The ongoing harm that such draconian copyright is causing is very much evident in South Korea, which also was the result of a "trade agreement" by which ACTA is being based upon.

So please stop spreading your propaganda around here, nobody will believe you. Honestly I'm sick and tired of it too.
November 19, 2009

crade said:

...
hehe fear mongering... good one! Nothing to worry about eh Barry? Just a trade agreement right? No overriding our legislation to be seen here! Move along.
November 19, 2009

MikeB said:

...
It's interesting that the summarization document to which Mr. Sookman points on Canadian Practices in International Treaties recommends that the secrecy factor be discontinued, as concluded:

"There is growing evidence that the Canadian people no longer want their government to negotiate agreements in secret so that they are faced with a fait accompli. The failure of the draft Multilateral Investment Agreement and the impossibility of starting new multilateral trade negotiations during the Seattle meeting proved that the people of the industrialized countries no longer intend to be silent on international treaties that might affect them. They want their opinions to be heard, and a closed door government process provides limited opportunities for such input.

Parliament has a traditional public consultation function and, by its very nature, a greater openness to public opinion. A redefined role for Parliament in negotiating, concluding, implementing and ratifying international treaties would seem to be an extremely important element of any reformed treaty-making process, in order to ensure that parliamentarians would no longer be excluded from an international law-making process that has significant effects on domestic law and state sovereignty in this era of globalization."

I also find it interesting that Mr. Sookman's blog is attempting to prevent fear mongering and misinformation, yet he quotes the OECD "$200 billion" lost value of piracy (the same report in which the OECD state “To date, no rigorous quantitative analysis has been carried out to measure the overall magnitude of counterfeiting and piracy.”), equates that Japan's idea for the establishment of a new international treaty was on IPR when it was clearly addressing the "Proliferation of Couterfeits and Pirated Goods" (a portion of IPR, but absolutely nothing with respect to internet copyright infringement that which ACTA appears to have evolved), and profounds ratification of the WIPO treaties as an "international obligation" (remind us again, Mr. Sookman. How many G7 countries have signed but have yet ratified them?)

November 19, 2009

Kaledic Smith said:

Mr. Sookman gets more than a letter from Clement
He gets the ear of Zoe Addington, Clement's advisor. Clement gave me a form letter, but Mr. Sookman gets to talk directly to his advisors.

This information is available to the public on the Canadian govt lobbyist website.
November 23, 2009

Dan Ballard said:

...
The rule in the US -- codified by statute -- when negotiating trade policy is that the negotiations will be "open and equitable" and that the negotiators must work toward fulfilling the "principal negotiating objective" of increasing transparency in the negotiations. See 19 U.S.C. 2901(b)(2)(3).

The heavy burden, therefore, is on the negotiators to justify any secrecy in their negotiations -- it is NOT on those who seek information about the trade talks to justify access to all relevant information.

In fact, the law prohibits the Executive Branch from entering into trade agreements (which are broadly defined) that do not make progress in meeting this transparency, and other, objectives. See 19 U.S.C. 2902(b)(2).
November 25, 2009

jc said:

as always
As always the price for freedom is vigilance. We cannot allow such things to pass. To cut off someone from the internet without judicial oversight turns the internet into a privilege not a right. It turns the internet into a privilege that the government allows you to use. The power these organizations wield is absolutely unbelievable, every moment we have to fight for freedom against them just because some people choose to share files. The current copyright laws to them seem inadequate because it gives the people the power to share. We are fighting for the ability for the accumulation of human knowledge. The freedom to know to watch to hear to think and to access the worlds knowledge and data. The internet is the new library of the modern world. Just as we had to fight for libraries to offer free books we must fight to allow the internet to offer free content. People will still pay to go to theatres, movies and concerts. All the world is asking for is to have the library at the tip of the their fingers and in their own homes.
November 30, 2009

mark said:

Acta
This information is available to the public on the Canadian govt lobbyist website.
April 11, 2011

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