[R-G] Secret, Sweeping Treaty with US in the Works

[Anthony Fenton]

http://thetyee.ca/Mediacheck/2009/03/31/SecretTreaty/

Mediacheck
Today: Tuesday, March 31, 2009
Secret, Sweeping Treaty with US in the Works
Infringe copyright, go to jail?
Battle over anti-counterfeiting agreement heats up.
By Michael Geist
Published: March 31, 2009

Next week, the Department of Foreign Affairs will conduct one of the  
stranger consultations in recent memory. Officials have invited  
roughly 70 stakeholder groups to discuss an international intellectual  
property treaty that the U.S. regards as a national security secret,  
about which the only public substantive information has come from a  
series of unofficial leaks.

Since then-minister David Emerson announced Canada's participation in  
the Anti-Counterfeiting Trade Agreement negotiations in October 2007,  
the ACTA has been dogged by controversy over the near-total lack of  
transparency. Early negotiations were held in secret locations with  
each participating country (Canada, the U.S., the European Union,  
Japan, and Australia among them) offering nearly-identical cryptic  
press releases that did little more than fuel public concern.

The participating countries conducted four major negotiation sessions  
in 2008 and though the first session of 2009 was postponed at the  
request of the U.S. (which was busy transitioning to a new president),  
the negotiations are set to resume later this spring.

When they do, negotiators will face two key challenges.

Open window, let in light

The first involves the mounting disagreement over transparency and the  
value of releasing the current draft to assuage public mistrust.  
According to documents recently obtained under the Access to  
Information Act, Canadian officials favour a transparent approach that  
would lead to an early release of the draft text.

Marie-Lucie Morin, then the Deputy Minister of International Trade  
(and now National Security Advisor to Prime Minister Stephen Harper),  
warned Minister Stockwell Day in November 2008 that "should there be  
no consensus among the ACTA partners to make the ACTA text public, the  
Department will need to develop options to address Canadian  
stakeholders concerns about the lack of transparency in the ACTA  
process."
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Further, a department spokesperson has confirmed that plans to  
establish an ACTA advisory group comprised of a few lobby  
organizations -- which was the initial intent in the summer of 2008 --  
have not gone forward.

Canada is not alone in supporting an open approach. Earlier this  
month, the European Parliament passed a resolution calling for the  
public availability of all ACTA materials. Moreover, while the U.S.  
government has denied requests for access to ACTA documents on  
national security grounds, reports indicate that it is currently  
reviewing its approach.

Harsh penalties, less privacy, tighter borders

Assuming that the documents are ultimately released to the public,  
negotiators will then face an even tougher challenge -- addressing  
concerns over the substance of the treaty itself. While little has  
been officially confirmed, there has been a steady stream of leaks in  
recent weeks that paint a picture of the treaty and Canada's role in it.

The proposed treaty has six main chapters: (1) Initial Provisions and  
Definitions; (2) Enforcement of Intellectual Property Rights; (3)  
International Cooperation; (4) Enforcement Practices; (5)  
Institutional Arrangements; and (6) Final Provisions. In addition to  
drafting two "non-papers" that focus on institutional ACTA issues and  
procedural matters, Canada supplied the draft text for the  
Institutional Arrangements chapter at the most recent ACTA meeting in  
Paris in December.

Most of the discussion to date has centred on the Enforcement of  
Intellectual Property Rights chapter, which is divided into four  
sections: civil enforcement, border measures, criminal enforcement,  
and the Internet. The first three sections were addressed in meetings  
last year. Although there is still considerable disagreement on the  
final text, leaked documents indicate that the draft includes  
increased damage awards, mandated information disclosure that could  
conflict with national privacy laws, as well as the right to block or  
detain goods at the border for up to one year.

Moreover, the criminal provisions go well beyond clear cases of  
commercial infringement by including criminal sanctions such as  
potential imprisonment for "significant willful copyright and  
trademark infringement even where there is no direct or indirect  
motivation of financial gain."

Internet crackdown coming?

Jail time for non-commercial infringement will generate considerable  
opposition, but it is the Internet provisions that are likely to prove  
to be the most controversial. At the December meeting, the U.S.  
submitted a "non-paper" that discussed Internet copyright provisions,  
liability for Internet service providers, and legal protection for  
digital locks.

The paper raised questions about damage awards, liability for hosting  
or storing content, and the extent to which national digital lock  
provisions mirror the U.S. approach. This indicates that the U.S. is  
feeling out its negotiating partners on the potential for an  
international version of its much-criticized Digital Millennium  
Copyright Act.

The upcoming consultation demonstrates that Canadian officials are  
working to address the transparency concerns. If the leaked documents  
are accurate, however, public support for the treaty will require far  
more than just greater openness.