Months after Australia consulted their citizens about even participating in the Anti-Counterfeiting Trade Agreement and weeks after the U.S. consulted their citizens on the same treaty, the Canadian government has finally decided to ask Canadians what they think. Better late than never – the ACTA is publicly pitched as formalization of international standards on counterfeiting, yet privately viewed as a behind closed doors attempt to ratchet up copyright laws. Indeed, according to a document I recently obtained under the Access to Information Act, Canadian Heritage officials referred to it as a Trade Agreement on Copyright Infringement.
It is difficult to provide meaningful feedback on a treaty that no one has publicly seen, but with some lobby groups hoping to use the treaty to increase ISP liability, force cross-border disclosure of ISP subscriber information, and further advance the cause of anti-circumvention legislation, there is reason for concern. For that reason, it is essential that Canadians take a few minutes to respond to the consultation, even if only to express concern about the lack of transparency and to urge the Canadian government to open the process to civil society groups and the broader public. The government recently committed to greater openness with international treaty ratification and consistent with that approach, Canadians should be permitted greater access to the negotiation process.
On a substantive level, Canadians might ask for some evidence that we need another treaty on this issue. We already have agreements through WIPO, WTO, Berne, etc. – what added value will come from this treaty that is not already addressed through the current treaty framework? Indeed, given that Canada is still grappling with the WIPO Internet treaties it seems premature to negotiate yet another treaty cover much of the same subject matter.
Canadians might also:
- raise privacy concerns, noting the need to ensure that the ACTA is not used to override current privacy law protections.
- note the danger in altering the intermediary liability balance by shifting greater responsibility to online intermediaries in a manner that could stifle creativity and innovation.
- note that in the zeal to increase criminal penalties, it should open the door lowering statutory minimums as the Israeli government recently did in its copyright reform package.
- stress that any new penalties or enforcement measures should preserve all due process rights. As discussed at the recent Fordham IP conference, Canadian judicial measures are unfairly painted as ineffective.
- ask why developing countries are excluded from the negotiation process when those countries have much at stake on these issues.
- emphasize that any piracy or counterfeiting measures should exclusively target large-scale commercial operations and not cases of non-commercial infringement.
- argue that consistent with the RCMP approach, the treaty must prioritize health and safety concerns.