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Secret Government Part III

By Senior Copyright Counsel, Google Inc.

Intellectual Property Watch is an excellent website, with timely informative article. Just posted is a typically insightful piece, this one by Monika Ermert of Germany on the just concluded ACTA deliberations in Geneva. Here is the link. among those at the event were Australia, Canada, the European Union, Japan, Jordan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, United Arab Emirates and the United States. Ms. Ermert reports:

ACTA?s declared goal, according to a note released after the meeting by the negotiators, is ?to provide a high-level international framework that strengthens the global enforcement of intellectual property rights.?
According to a short press note released by the European Commission directorate general for trade on 5 June, ?a number of topics were discussed? at the Geneva meeting. ?The main focus of the discussion was border measures, particularly how to deal with large-scale intellectual property infringements, which can frequently involve criminal elements and pose a threat to public health and safety. Participants considered the discussions useful and are satisfied with the progress to date.?
A spokesperson of the European Commission confirmed that consultation with different stakeholders had been on the agenda and would happen over the coming month at the domestic level. Draft text proposals still have not been published, the source said. Several parties contacted pointed to confidentiality agreed on by the negotiating partners. It was still early, they said.

Translated, this final paragraph may mean: "Countries also discussed whether they should actually talk to those who would be affected by the agreement, and agreed that sometime they will, but everything we have done is super-secret because we agreed it would be super-secret." One could say, "trade agreements are always negotiated confidentially," but that is circular: why are important substantive provisions of copyright law -- as compared to the effects copyright law might have on trade -- being done this way? The answer is because governments wanted to. It is not that governments are forced to negotiate the issues this way; rather it is the case that they chose to do so, and they chose to do so for obvious reasons.

An alternative would have been for trade negotiators to have obtained beforehand clear guidance from their governments about what the metes and bounds of any negotiations will be, and in the United States (unlike Parliamentary systems), that would mean Congress, and since it means Congress is should also mean the public. I don't buy the argument that trade agreements merely by virtue of being trade agreements are outside of the ordinary democratic process.
A rejoinder to this is that trade agreements will still have to be approved by domestic governments, and there will be time for such "consultations." There are two problems with this. First, there is no requirement that the consultations be full and free, but also, once agreement has been reached in such group negotiations, undoing things later is difficult.

Full post as published by The Patry Copyright Blog on June 06, 2008 (boomark / email).