With yesterday's leak of a Dutch government document revealing the positions on ACTA transparency of many of the negotiating partners, it is worth taking stock of the current positions on the issue:
|Country||Position on ACTA Transparency|
|United States||Neutral (but indication that oppose)|
|European Commission||Oppose (fear it would set precedent for other trade talks)|
|France||Support (but fear U.S. retaliation)|
|Italy||Support (but fear U.S. retaliation)|
Remaining European Union countries with positions unknown: Bulgaria, Cyprus, Czech Republic, Greece, Latvia, Lithuania, Luxembourg, Malta, Romania, Slovakia, Slovenia, Spain.
Remaining ACTA countries with positions unknown: Mexico, Morocco, Switzerland.
If anyone has further updated information, feel free to email or post in the comments.
As far as I can tell, the leak only mentions some countries that oppose, and mentions a few in Europe that are in support, but does not go so far as to claim the ones not mentioned are all in support. I don’t see Canada mentioned at all. Am I missing something?
Ah nevermind, I missed that the summary is not based solely on this report 🙂
Though unofficial, you might consider listing Mexico as “unknown (but indication that oppose)”. I suggest this based on the NDRs at so-called public consultations. http://www.techdirt.com/articles/20100122/1026457875.shtml
These countries need not fear the US. A reminder goes out to the globe that the US is currently in crisis with respect to lobby influence on it’s legislators. The global economy tanked due to “loop” holes in US law overlooked in main part due to the biggest lobby on Capital Hill “The bank lobby”. If anything the global community needs to seriously look at any trade agreement with scrutiny so that we don’t end up in another situation where the global economy is put at risk, because US law makers alone have way too much influance on the global economy.
A lot of the lobby issues Washington was supposed to fix when Obama came into power. Not the case, and Lawrence Lessig over the past year, has moved from the issue of copyright to the issue of corruption in US politics, and identifying the power US corps have over the direction of that country rather than the Americans themselves.
If anything the US should fear retaliation from other countries should they not support transparency. Currently the majority that support ACTA transparency have the upper hand economically, not the US.
Recommended viewing for those involved with ACTA is a great investigative piece done by PBS Frontline entitled “The Warning”, and investigates how the global economic meltdown started. For Canada and the US it’s viewable on the pbs.org website under the Frontline section. To the rest of the world, it’s probably blocked due to “rights restrictions”. lol
No legal base to oppose it
The EU-Commission is legally bound by the EU TFUE Article 15 (Lisbon regime), which grants citizens a right. This is why the Commission blames it on the other delegations (current 1040/2001/EC Art 4 “international relations” exceptions). They formally lack competence to oppose transparency as this contravenes the treaty provisions, see below. If it is an EU process, it applies probably also to member states involved in the process which signed Lisbon. It seems legally impossible to hold that position in international fora because the treaty mandates the opposite:
TFUE Article 15 (ex Article 255 TEC)
1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.
2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.
3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure.
Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph.
The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.
The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulations referred to in the second subparagraph.
Furthermore the Article 218 (10) TFUE:
10.The European Parliament shall be immediately and fully informed at
all stages of the procedure.
That is an aspect the Parliament INTA raised this week in a hearing on ACTA. Here the Commission defended its ACTA transparency practice with the notion that they do not have a right to disclose the positions of other delegations.
The open question is if the Commission is entitled to enter into such international talks at all when the transparency regime is incompatible with Article 15 TFUE. I am sure we will see some further technical debate on the matter.
Position Mexico IMPI
IMPI (negotiator) published yesterday this minute about the public hearing more than a month ago. It might help to have a picture about their position. http://j.mp/chWZI9 (PDF) No report on Guadalajara meetings yet.
A. Rebentisch, the out is at the end of para 1 to the article you quote. The article does not say it must always be conducted in an open manner, simply that “shall conduct their work as openly as possible”. As such, they appear to be correct in a concern about creating a precedent; there is one other negotiation currently going on that is being conducted in an open manner, and is often cited as an example of how it should be done (it was mentioned on this blog but I can’t remember which one off the top of my head). 13 years of negotiations and counting, and they appear to be no further along than ACTA appears to be. Based on that experience, I can understand a reluctance to force all economic treaty negotiations to be conducted in an open manner; the option for “closed” negotiations would appear to be a desirable option to have available, even if it is never used.
If 3 strikes isn’t going to be part of ACTA we know why. It looks like the US wants to start regulating the internet and wants to “work” with other countries on it.
“Copyright protection: How do we protect against illegal piracy of copyrighted works and intellectual property on the Internet while preserving the rights of users to access lawful content? NTIA and our sister agency at the Department of Commerce, the US Patent and Trademark Office, are beginning a comprehensive consultation process that will help the Administration develop a forward-looking set of policies to address online copyright infringement in a balanced, Internet-savvy manner.”
“All of these efforts must involve collaboration â€“ among government agencies, foreign governments when appropriate, and key Internet constituenciesâ€”commercial, academia, civil society.”
I wish I understood how the media companies wield the unbelievable power they do.
“I wish I understood how the media companies wield the unbelievable power they do.”
Through political lobbying, and political contributions. In the US they don’t have publicly funded elections. The people don’t own their government in the US, it’s the corporations that do. That’s why we are in a global recession. Civil society should be dictating public policy. At least here in Canada we had a public copyright consultation. Whether that means anything in this day in age will be determined soon when the Cons throw up the next copyright bill.
The 15(1) “shall conduct their work as openly as possible” is fresh and it is worded strongly. “shall” means mandatory as opposed to “should”. As the competences of the Commission are defined by the Treaties the Commission lacks competence to *demand* less transparency from other parties. In the EU they claim that the other parties are holding them back. Notably, it is all not tested at the European Court of Justice, anyway. The treaties are different from a Contitution in the sense that they also represent a kind of political programmatics. The Commission is no government but it is the guardian of the Treaties. If their actions contradict the treaties that is a strong infringement of their duties.
However, the classic meat is Art 15(2) TFUE, before Lisbon codified as Article 255. I grants all citizen a right of access to documents. It is implemented by EC/1049/2001.
Unfortunately the implementation in 2001 did not imagine regulatory aspects of trade discussions. It is well understood that e.g. Trade negotiations about tarriffs should be confidential. Of course ACTA is no FTA but international legislation put into an FTA procedure. The current legal base to deny ACTA document access is EC/1049/2001 Art 4 “International Relations” exemptions.
Basically it is enought to fix that Article 4 of EC/1049/2001. Watch the procedure COD(2008)0090 M.Cashman! Am109 in the recast opinion even created a lex specialis for ACTA transparency, but I expect we will get a generic solution.
Switzerland supports transparency
According to the information we got from our representatives, Switzerland actually supports transparency (see protocoll of a civil society participant from a meeting with the Swiss Delegation (in German)).
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