ACTA Guide, Part Three: Transparency and ACTA Secrecy

Wednesday January 27, 2010

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:

 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.