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ACTA Guide, Part Three: Transparency and ACTA Secrecy

By Michael Geist

Part Three of the ACTA Guide (Part One on the agreement itself, Part Two on the official and leaked documents) 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:

• Senators Bernie Sanders and Sherrod Brown, United States
• Rep. Mike Doyle, United States
• Rep. Zoe Lofgren, United States
• Nicolas Dupont-Aignan, France
• Tom Watson (Labour), John Whittingdale (Conservative), Lindsay Hoyle (Labour), and Don Foster (Lib Democrats), United Kingdom
• Minister Åsa Torstensson, Sweden
• MEP Jens Holms, Sweden
• MEP Axel Voss, Germany
• MP Clare Curran, New Zealand
• Peter Dunne, New Zealand
• MP Charlie Angus, Canada

Moreover, the European Parliament has voted for a proposal to bring more transparency and public access to documents.  The resolution includes specific language about the Anti-Counterfeiting Trade Agreement.  In particular, it states:

Acting in accordance with Article 255(1) of the EC Treaty, the European Commission should immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available.

The justification for the language is:

The Anti-Counterfeiting Trade Agreement (ACTA) will contain a new international benchmark for legal frameworks on what is termed intellectual property right enforcement. The content as known to the public is clearly legislative in character. Further, the Council confirms that ACTA includes civil enforcement and criminal law measures. Since there can not be secret objectives regarding legislation in a democracy, the principles established in the ECJ Turco case must be upheld.

In addition to elected officials and parliamentary resolutions, numerous public interest groups from around the world have joined the call for greater ACTA transparency (current joint declaration is one example).  Business groups have also attacked the secrecy associated with the talks.

2.   The Sources of ACTA Secrecy

Identifying the sources of ACTA secrecy are alternately easy and difficult. The confidentiality statement that forms the basis of ACTA confidentiality has been leaked and makes it clear that the U.S. set the initial terms of secrecy.  A more detailed discussion can be found in several documents responding to access to information/freedom of information requests.  For example, the Declaration of Stanford McCoy of the USTR on ACTA disclosure of documents provides the U.S. perspective, while European Council response on ACTA transparency and disclosure of documents provides the EU view (second EU document here).

While those are the official positions, some countries have provided limited access to "ACTA Insiders."  The U.S. made the Internet chapter available under non-disclosure agreement to 42 ACTA insiders in 2009.  Canada intended to create an insider advisory group, but abandoned those plans after details of the possible members was obtained under the Access to Information Act and reported in the press.

More difficult is to identify who currently supports ACTA secrecy. According to an article in the EU Observer, roughly half of the 27 EU Member States support increased ACTA transparency, suggesting that making content publicly available would increase public confidence.  There have been similar reports in the UK, New Zealand, Australia, and Canada. That still leaves the Asian countries and the U.S. as potential holdouts (USTR head Ron Kirk has reportedly said that countries would walk away from the treaty if the text were made available).

3.   Is ACTA Secrecy Standard?

The third major issue is whether the ACTA secrecy is commonplace.  Last fall, the ACTA partners released a joint statement 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."  Yet a closer examination of similar international IP negotiations reveals that the ACTA approach is not standard.

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, the WIPO Internet treaties, which offer the closest substantive parallel to the ACTA Internet provisions, were by comparison very transparent:

The two WIPO Internet Treaties (WCT and WPPT) were negotiated in a completely open meeting at the Geneva Convention Center. The public was allowed to attend without accreditation. The draft texts for the WCT and the WPPT were public, and the U.S. government requested comments on the draft texts, which were available, among other places, from the U.S. Copyright Office.

Two other documents offer similar reviews of the transparency of negotiation documents and opportunities for public participation.  Moreover, Jamie Love recently posted a comparison of the level of transparency during the FTAA negotiations with the ACTA talks.  Several drafts of the FTAA agreement were released to the public as the negotiations were ongoing.

The inescapable conclusion is that the ACTA approach is hardly standard.  Rather, it represents a major shift toward greater secrecy in the negotiation of international treaties on intellectual property in an obvious attempt to avoid public participation and scrutiny.

Full post as published by Michael Geist on January 27, 2010 (boomark / email).