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Wikileaks ACTA Cables Reveal Concern With U.S. Secrecy Demands

By Michael Geist

The Guardian has posted two Wikileaks cables that focus on the Anti-Counterfeiting Trade Agreement.  The first is from Italy in November 2008.   It provides a useful reminder that the U.S. at one time hoped to conclude the ACTA negotiations by the end of 2008 (and the George Bush term).  The cable quotes the Italian head of the IP office within the Ministry of Foreign Affairs as saying that timeline was unrealistic:

European countries are likely to ask for a slowdown in negotiations because of opposition to the EU commission's involvement in negotiating portions of the treaty, disagreements over the confidentiality level of the negotiations, and the absence of geographical indications from the agreement.

The official also noted opposition among member states with the European Commission negotiating criminal matters and ongoing frustration with the level of secrecy associated with ACTA that made it impossible to properly consult stakeholders:

The level of confidentiality in these ACTA negotiations has been set at a higher level than is customary for non-security agreements. According to Mazza, it is impossible for member states to conduct necessary consultations with IPR stakeholders and legislatures under this level of confidentiality. He said that before the next round of ACTA discussions, this point will have to be renegotiated.

The official characterized ACTA as "TRIPS Plus" and noted (correctly) that geographic indications was likely to become a major sticking point.

The second cable comes from Sweden in November 2009.  The cable focuses on domestic criticism of ACTA, particularly the secrecy associated with the agreement and the Internet chapter.  According to a Swedish official who represented the EU Presidency at the ACTA negotiations:

the secrecy issue has been very damaging to the negotiating climate in Sweden. All political parties have vocal minorities challenging the steps the government has taken to step up its IPR enforcement. For those groups, the refusal to make ACTA documents public has been an excellent political tool around which to build speculation about the political intent behind the negotiations. If the instrument for example had been negotiated within the World Intellectual Property Organization (WIPO) critics say, WIPO's Secretariat would have made public initial draft proposals.

In Johansson's opinion, the secrecy around the negotiations has led to that the legitimacy of the whole process being questioned. This, combined with the leaked European Commission document summarizing an oral account of the U.S. internet chapter proposal, forced Justice Ministry State Secretary Magnus Graner to go public earlier this month to appease the storm of critics by assuring them that the Swedish government will not agree to any ACTA provision that would require changes to current Swedish laws.

Johansson said that in his opinion, there is strong support within the negotiating group for the position that a negotiated text coming out of the ACTA discussions must be made public while there is still scope to influence the final outcome. He further told us that the European Commission is concerned that the USG has close consultation with U.S. industry, while the EU does not have the same possibility to share the content under discussion in the negotiations.

The comments confirm much of the discussion from civil society groups during the negotiations, particularly that ACTA was far more secretive than comparable discussions at WIPO, that the secrecy actually hurt government positions since it forced them to provide assurances on future domestic changes, and that there was strong support for making the text available among many negotiating partners. 

Wikileaks has nearly 2,500 cables focused on intellectual property issues.

Full post as published by Michael Geist on December 22, 2010 (boomark / email).