Opening Up on ACTA
Thursday, April 16th, 2009 by Patrick RossKudos to USTR Ron Kirk (my second praise for him today) and his team for last week’s update on the Anti-Counterfeiting Trade Agreement (ACTA) negotiations. I was traveling then but I’ve had a chance to read the summary they issued on the negotiations, and I think all of us in the creative community should feel good about how things are going.
We should also recognize that there was no statutory or other obligation for USTR to share this information. As they did last fall with an open meeting, they are demonstrating their commitment to transparency. As they note in the summary in response to calls to have everything done in the open, however:
A variety of groups have shown their interest in getting more information on the substance of the negotiations and have requested that the draft text be disclosed. However, 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. This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues. At this point in time, ACTA delegations are still discussing various proposals for the different elements that may ultimately be included in the agreement. A comprehensive set of proposals for the text of the agreement does not yet exist.
After that meeting last fall I ran into a foreign official I know from one of the ACTA negotiationg countries, who was very concerned the U.S. would cave in and broadcast the substance of ACTA meetings. That official’s country and others, the official said, could not continue with negotiations if they couldn’t put engage in give-and-take necessary in these situations, which often involve positions not yet approved for public announcement by the respective governments.
Has no one studied U.S. history? Does no one remember that our Founding Fathers locked themselves in a room with closed windows in Philadelphia all summer — no fresh air! wigs and wool coats! — because they felt they could sell the populace on a federal government once a constitution was written, but if each debatable point was to be hashed out in public they knew the Articles of Confederation would stand, and the confederation itself would fall. Hey Madison, what about transparency?
Let’s be honest here — those calling for “transparency” don’t want more international IP enforcement, they found a media-friendly way to try to kill the talks.
But the talks aren’t dead, and if the summary is any guide of what will emerge, these groups have little to fear. The key point, which USTR has hit on before, is in Chapter Two, Section 2, Border Measures. Can we stop already with this canard about seizing iPods at the border? As if border agents don’t have enough to worry about. The summary talks about a de minimis exception for travelers crossing borders with goods for personal use. First of all, there would have been no way of knowing if tracks on an iPod were infringed or not, but now it doesn’t matter. It also appears I could go to Tijuana, buy up a duffle bag’s worth of pirated DVDs, drive into California, and claim the personal use exemption, even though they were clearly illegal. I am obviously not condoning that, but my point is that Section 2 is clearly aimed at bigger fish.
The rest of the summary reflects exactly what USTR has been saying about ACTA from Day One — namely, that this is a voluntary effort among developed and emerging economies to better coordinate international enforcement and to clarify ambiguities surrounding enforcement.
Ultimately, we are talking about countries that have voluntarily signed treaties obligating them to enforce creators’ rights taking steps to better meet that obligation. Works for me. I look forward to a final treaty, and I hope many nations sign up.
April 17th, 2009 at 10:08 am
The framers of the Constitution did not invite representatives of certain special interests to observe their convention while excluding others who didn’t have favored relationships with the drafters. Unfortunately the USTR has done exactly that - many of the Copyright Alliance members or their trade associations have access to the negotiations, while the rest of us don’t.
Anything that seeks to change U.S. law or regulations or even to guide courts’ interpretation of those laws and regulations must be debated in the sunlight. Otherwise whatever is agreed on, including provisions related to the Internet, will be hailed by Copyright Alliance members and their friends in government as a fait accompli once they are announced. As with the DMCA anti-circumvention and the 1998 copyright term extension, both supposedly mandated by treaties or international comity, Copyright Alliance members are all too happy to have rules made in secret, then pushed through representative bodies without allowing for debate. Do you support this?
April 17th, 2009 at 10:14 am
Also, according to your Constitutional Convention analogy, all bills in the US Congress should be debated in secret and presented to the public only when complete and ready for the President’s signature. Is that your position? If not, which kinds of rules should only be debated in secret and which in public?
April 17th, 2009 at 3:10 pm
Going by the old analogy that the Bush regime used:
“If you’re not a terrorist, you’ve got nothing to hide”.
The only people that rely on secrecy are criminals.
The kinds of agreements ACTA is making *are* illegal, and will take away the rights of citizens *everywhere*.
October 2nd, 2009 at 4:15 pm
[...] risk of appearing as if I have a man-crush on Ambassador Kirk — see my previous praise here, here and here for starters — Kirk once again showed he understands why rights are important to [...]