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:

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After watching the Google DC debate on ACTA with its emphasis on the issue of transparency, it is worth revisiting the ACTA document spelling out confidentiality requirements among the negotiating countries. The document, which specifies the U.S. approach, discusses the confidentiality requirements associated with ACTA documents including marking the documents […]

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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:

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