My weekly technology law column (Toronto Star version, homepage version) begins by noting that next week, the Department of Foreign Affairs will conduct one of the stranger consultations in recent memory. Officials have invited roughly 70 stakeholder groups to discuss an international intellectual property treaty that the U.S. regards as a national security secret and about which the only public substantive information has come from a series of unofficial leaks.
Since then-Minister David Emerson announced Canada’s participation in the Anti-Counterfeiting Trade Agreement negotiations in October 2007, the ACTA has been dogged by controversy over the near-total lack of transparency. Early negotiations were held in secret locations with each participating country (Canada, the U.S., the European Union, Japan, and Australia among them) offering nearly-identical cryptic press releases that did little more than fuel public concern.
The participating countries conducted four major negotiation sessions in 2008 and though the first session of 2009 was postponed at the request of the U.S. (which was busy transitioning to a new president), the negotiations are set to resume later this spring. When they do, negotiators will face two key challenges.
The first involves the mounting disagreement over transparency and the value of releasing the current draft text to assuage public mistrust. According to documents recently obtained under the Access to Information Act, Canadian officials favour a transparent approach that would lead to an early release of the draft text. Marie-Lucie Morin, then the Deputy Minister of International Trade (and now National Security Advisor to Prime Minister Stephen Harper), warned Minister Stockwell Day in November 2008 that "should there be no consensus among the ACTA partners to make the ACTA text public, the Department will need to develop options to address Canadian stakeholders concerns about the lack of transparency in the ACTA process." Further, a department spokesperson has confirmed that plans to establish an ACTA advisory group comprised of a few lobby organizations – which was the initial intent in the summer of 2008 – have not gone forward.
Canada is not alone in supporting an open approach. Earlier this month, the European Parliament passed a resolution calling for the public availability of all ACTA materials. Moreover, while the U.S. government has denied requests for access to ACTA documents on national security grounds, reports indicate that it is currently reviewing its approach.
Assuming that the documents are ultimately released to the public, negotiators will then face an even tougher challenge – addressing concerns over the substance of the treaty itself. While little has been officially confirmed, there has been a steady stream of leaks in recent weeks that paint a picture of the treaty and Canada’s role in it.
The proposed treaty has six main chapters: (1) Initial Provisions and Definitions; (2) Enforcement of Intellectual Property Rights; (3) International Cooperation; (4) Enforcement Practices; (5) Institutional Arrangements; and (6) Final Provisions. In addition to drafting two "non-papers" that focus on institutional ACTA issues and procedural matters, Canada supplied the draft text for the Institutional Arrangements chapter at the most recent ACTA meeting in Paris in December.
Most of the discussion to date has centred on the Enforcement of Intellectual Property Rights chapter, which is divided into four sections – civil enforcement, border measures, criminal enforcement, and the Internet. The first three sections were addressed in meetings last year. Although there is still considerable disagreement on the final text, leaked documents indicate that the draft includes increased damage awards, mandated information disclosure that could conflict with national privacy laws, as well as the right to block or detain goods at the border for up to one year. Moreover, the criminal provisions go well beyond clear cases of commercial infringement by including criminal sanctions such as potential imprisonment for "significant willful copyright and trademark infringement even where there is no direct or indirect motivation of financial gain."
Jail time for non-commercial infringement will generate considerable opposition, but it is the Internet provisions that are likely to prove to be the most controversial. At the December meeting, the U.S. submitted a "non-paper" that discussed Internet copyright provisions, liability for Internet service providers, and legal protection for digital locks. The paper raised questions about damage awards, liability for hosting or storing content, and the extent to which national digital lock provisions mirror the U.S. approach. This indicates that the U.S. is feeling out its negotiating partners on the potential for an international version of its much-criticized Digital Millennium Copyright Act.
The upcoming consultation demonstrates that Canadian officials are working to address the transparency concerns. If the leaked documents are accurate, however, public support for the treaty will require far more than just greater openness.