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ACTA Guide, Part Three: Transparency and ACTA Secrecy

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Wednesday January 27, 2010
Part Three of the ACTA Guide (Part One on the agreement itself, Part Two on the official and leaked documents [update: Part Four on local effects]) focuses on the issue that has dogged the proposed agreement since it was first announced - the lack of transparency associated with the text and the talks.  As yesterday's public letter from NDP MP Charlie Angus and the UK cross-party motion highlight, elected officials around the world have latched onto the transparency issue and demanded that their governments open ACTA to public scrutiny.  Reviewing the ACTA transparency issue involves several elements: the public concern with ACTA secrecy, the source of the secrecy, and the analysis of whether ACTA secrecy is common when compared to other intellectual property agreements.

1.   The Public Concern

Over the course of the two years since ACTA was first publicly announced (it was secretly discussed for about two years before the public unveiling), there have been repeated calls from elected officials and public interest groups to address the transparency concerns. In fact, each time portions of the ACTA text leak, the concerns grow stronger.  For example, a sampling of the global call from politicians for greater transparency includes:

Moreover, the European Parliament has voted for a proposal to bring more transparency and public access to documents.  The resolution includes specific language about the Anti-Counterfeiting Trade Agreement.  In particular, it states:

Acting in accordance with Article 255(1) of the EC Treaty, the European Commission should immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available.

The justification for the language is:

The Anti-Counterfeiting Trade Agreement (ACTA) will contain a new international benchmark for legal frameworks on what is termed intellectual property right enforcement. The content as known to the public is clearly legislative in character. Further, the Council confirms that ACTA includes civil enforcement and criminal law measures. Since there can not be secret objectives regarding legislation in a democracy, the principles established in the ECJ Turco case must be upheld.

In addition to elected officials and parliamentary resolutions, numerous public interest groups from around the world have joined the call for greater ACTA transparency (current joint declaration is one example).  Business groups have also attacked the secrecy associated with the talks.

2.   The Sources of ACTA Secrecy

Identifying the sources of ACTA secrecy are alternately easy and difficult. The confidentiality statement that forms the basis of ACTA confidentiality has been leaked and makes it clear that the U.S. set the initial terms of secrecy.  A more detailed discussion can be found in several documents responding to access to information/freedom of information requests.  For example, the Declaration of Stanford McCoy of the USTR on ACTA disclosure of documents provides the U.S. perspective, while European Council response on ACTA transparency and disclosure of documents provides the EU view (second EU document here).

While those are the official positions, some countries have provided limited access to "ACTA Insiders."  The U.S. made the Internet chapter available under non-disclosure agreement to 42 ACTA insiders in 2009.  Canada intended to create an insider advisory group, but abandoned those plans after details of the possible members was obtained under the Access to Information Act and reported in the press.

More difficult is to identify who currently supports ACTA secrecy. According to an article in the EU Observer, roughly half of the 27 EU Member States support increased ACTA transparency, suggesting that making content publicly available would increase public confidence.  There have been similar reports in the UK, New Zealand, Australia, and Canada. That still leaves the Asian countries and the U.S. as potential holdouts (USTR head Ron Kirk has reportedly said that countries would walk away from the treaty if the text were made available).

3.   Is ACTA Secrecy Standard?

The third major issue is whether the ACTA secrecy is commonplace.  Last fall, the ACTA partners released a joint statement 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."  Yet a closer examination of similar international IP negotiations reveals that the ACTA approach is not standard.

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, 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.  Moreover, Jamie Love recently posted a comparison of the level of transparency during the FTAA negotiations with the ACTA talks.  Several drafts of the FTAA agreement were released to the public as the negotiations were ongoing.

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 (18)add comment

Captain Hook said:

Answer this Sookman

Old Barry Sookman loves to respond to Michael's posts when he thinks he can score a quick point. His retort on the issue of transparency to date has been to quote from this Canadian government document http://dsp-psd.pwgsc.gc.ca/Col...egotiating a Treaty(txt)

"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."

However neither he nor this document offer any empirical evidence to backup this claim that secrecy is normal. Geist on the other hand names several treaties that have recently been negotiated, and demonstrates how they were far more transparent.

In addition Sookman fails to quote from the conclusion of the same document. Presumably because it harms his argument.

"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."

I await Sookman's retort with bated breath.

January 27, 2010

crade said:

"Since there can not be secret objectives regarding legislation in a democracy"

January 27, 2010

Robert said:

"The third major issue is whether the ACTA secrecy is commonplace. Last fall, the ACTA partners released a joint statement 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." Yet a closer examination of similar international IP negotiations reveals that the ACTA approach is not standard."

The "public at large" is the "sovereign state" when you deal with most modern non-dictatorship governments.
January 27, 2010

unity100 said:

'sovereign state' lose its sovereign status if it attempts to legislate without a parliament being in the process. it means dictatorship. basically, bringing national criminal and legal charges and punishment to citizens without a parliament, like in the acta case, violates principles of democracy and makes anyone attempting that a dictator. therefore it basically invokes numerous independency and liberty clauses in a lot of countries' constitutions.
January 27, 2010

There is a crack in everything said:

List of secrecy supporters
Great work - as usual.

Now if we had a list of all people who dreamed up and have been supporting the secrecy would be nice. Both elected officials and non-elected people.

The media, the voting public and customers should question all involved in the secrecy, to find out exactly who and how benefits from the secrecy.
January 27, 2010

James said:

Maybe this would apply if ACTA is purely a trade agreement.

But when it creates legislation directly targeting citizens in a particular nation, those citizens have a right to know what exactly it is they're going to get as a result of this policy laundering bullshit.
January 27, 2010

Penang said:

Is this thing legally binding?
Is this anti-counterfeiting thing has any legal bite in it?

I mean, if Government A signs on to it in secrecy only to find later that the thing doesn't protect the citizens ... can the government backs off from it, without having to be sued or bear other legal consequences?
January 27, 2010

CM24Ellen said:

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January 28, 2010

dh said:

@1. The Public Concern
Why should be Art. 255 EGV applicable ? Since Dec. 2009 is the new Lisbon Treaty to run. Besides Art. 255 II, III EGV has a reservation that Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.i´m thinking relevant is Art. 218 of the Lisbon Treaty.
January 28, 2010

anonymous said:

Maybe it's better if it's all secret
The leaks suggest that the outcome of the ACTA negotiations will be onerous, expensive and invasive. Faced with huge pressure to engage in such negotiations, a government acting in good faith with its electorate might go ahead with the obscene secrecy requirements precisely because the secrecy undermines the legitimacy of the result. The good-faith government gets the opportunity to repudiate the whole thing after the fact, due to the will of the electorate they represent not supporting the onerous, expensive and invasive result. But it can go ahead and win whatever points it needs internationally by sitting at the table and nodding at all the right times to let the lobbyists earn their keep.
January 28, 2010

crade said:

The "legitimacy" of the result isn't decided by us. It is decided by how much pressure the US + UK want to put behind forcing countries to implement the treaty.
January 28, 2010

anonymous said:

Legitimacy flows from the will of the electorate
Legitimacy, in a democratic society, flows from the will of the electorate. Any policy that is sufficiently at odds with the will of the people will become an election issue and will result in the downfall of the government and, ultimately, reversal. Now I'm not saying that ACTA will be akin to capital punishment or something in motivating folks at the polls, but the government and opposition are sensitive to this sort of thing. If they sense that it is a hot potato with the electorate, they will allow it to die on the order paper, or maybe water it down or otherwise side-step it. And the more secretive the process and draconian the result, the more the electorate can attack its legitimacy and the more the government is motivated to leave it alone.

It's our job to make sure people at large are aware that it is draconian in nature, expensive to implement and is arrived at in a fundamentally corrupt and ant-democratic way. If parliament ever goes back to work, the opposition can make hay with those facts and get it sidelined. If the process were genuinely open, the job of getting ACTA implementation shut down might be harder, because the process would be less obviously corrupt.
January 28, 2010

crade said:

I like you optimism :) Your theory of democracy doesn't seem to match my personal experiences with it, but hope is better than nothing!
January 28, 2010

oldguy said:

Optimism in the democratic process is a good thing. Just consider the consequences of the alternatives, and the "will of the people".

In the past it may have been more "politically efficient" to negotiate international trade agreements without actively polling the "will of the electorate".
In the digital age this situation no longer applies. As in any negotiation, when you enter into negotiations there are items that are "non-negotiable" and there are upper and lower limits to other items. At the very least, Canada should have entered into these negotiations with a clear idea of the status of various items.

The concept of "stakeholders" is a valid one, but in this case the stakeholders include the whole of the Canadian electorate. To eliminate them from consideration (not poll for their opinions) is tantamount to disenfranchisement. Not democratic at all, but the individuals will be dealt with in a democratic fashion.

It's hard to tell, but does any country's representatives at the ACTA table have a mandate from their electorate to pursue a particular agenda? Items on the agenda?
It's very obvious that the old fashioned "trust me, I know what's good for you" political approach no longer works in the digital age. The electorate are starting to pay close attention, in all the countries involved. Do the elected officials and negotiators realise this? Are they paying attention too?

January 28, 2010


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