Anti-Counterfeiting Trade Agreement Talks Continue Amid Controversy Over Leaked Draft

WASHINGTON, November 4, 2009 – While representatives of countries were scheduled to begin meeting today in Seoul, South Korea, to negotiate a confidential international anti-counterfeiting trade agreement, some public interest and consumer groups continue to press for more transparency of the negotiations.

On November 3 a number of groups signed a letter addressed to President Obama and carbon copied to other key administration officials calling for greater transparency of the talks.

The list of signatories included Knowledge Ecology International, Electronic Frontier Foundation, Public Citizen, Sunlight Foundation, Lawrence Lessig of Harvard Law School, Peter Suber of Harvard University’s Berkman Center for Internet & Society, and Laura DeNardis of the Yale Information Society Project, among many others.

“While we agree that the enforcement of intellectual property rights is very important, it is also a complex area where the “solutions” to the enforcement issues are often controversial, and it is important to balance a variety of competing interests, and to ensure that measures to enforce private intellectual property rights do not undermine civil rights and privacy, or unduly impede innovation,” reads the letter.

Last month, the United States Trade Representatives reportedly invited a number of folks in the technology space to view copies of the documents related to the negotiation. The Knowledge Ecology International letter complained that while the USTR appeared to be responding to calls for greater transparency of the process, the people it chose to show the documents to largely represented business interests who were required to sign a non disclosure agreement to prevent public discussion.

According to Knowledge Ecology, those who were able to see the documents after signing NDAs included representatives from the Business Software Alliance, Google, eBay, Consumer Electronics Association, Wilmer Hale, Verizon, the International Intellectual Property Alliance, Public Knowledge, Intel, Dell, Center for Democracy and Technology, Sony, Time Warner, among others.

“We have no confidence in this new approach,” reads the Knowledge Ecology letter. But the USTR said it has “broadened its consultations to include a diverse range of views including not only the list of cleared advisers who give input to USTR on a regular basis, but also to interested domestic stakeholders representing a broad range of views and expertise on internet and digital issues, including representatives from non-governmental organizations and industry leaders in intellectual property and technology.”

In 2007 the USTR said the goal (PDF) of the ACTA was to “establish, among nations committed to strong IPR protection, a common standard for IPR enforcement to combat global infringements of IPR particularly in the context of counterfeiting and piracy that addresses today’s challenges, in terms of increasing international cooperation, strengthening the framework of practices that contribute to effective enforcement of IPRs, and strengthening relevant IPR enforcement measures themselves.”

The idea of such an agreement took root in 2004 and gained group in 2006 when Japan and the United States launched the idea of a plurilateral treaty to establish effective international standards to enforce intellectual property rights, according to the USTR. In 2007 the USTR wrote (PDF) that the office hoped to “complete the negotiation by the end of this year.”

On April 6 the USTR released a summary (PDF) of the current state of the ACTA negotiations. Countries involved in the discussion include Canada, the European Commission, Japan, Switzerland, Australia, Mexico, Morocco, New Zealand, Republic of Korea, the United States and Singapore.

Former U.S. Coordinator for International Intellectual Property Enforcement Chris Israel called the accusation by Knowledge Ecology and others that the government has been secretive about the negotiations a “red herring.”

He told BroadbandCensus.com that the “USTR has reviewed the actual text with dozens of interested parties who both support and question ACTA. The goal is to work with a number of sophisticated and important trading partners to negotiate an agreement that will address the major problem of global piracy and counterfeiting. You can’t effectively do that online or in the blogosphere.”

Israel, who worked under the Bush Administration, added that “At some point senior government officials have to meet with each other privately and hammer out serious details. The Obama Administration is doing a great job tackling tough IP enforcement issues and trying to be as open and transparent as possible.”

There has been significant speculation and alarm bells raised including an EFF blog post and a post from Michael Geist, a law professor at the University of Ottawa, on the Internet this week about what will be discussed during the negotiations.

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