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Groups Call for Counterfeit Agreement Openness

Criticism mounts as negotiations press forward in landmark international IP agreement.

January 26, 2010
By Kenneth Corbin: More stories by this author:

A group of international activists are ratcheting up criticism of a landmark multinational intellectual property agreement currently under negotiation, warning against both the substance of the agreement and the veil of secrecy under which it is being crafted.

For critics, the Anti-Counterfeiting Trade Agreement (ACTA) has the potential to enact a sweeping overhaul of the participating nations' policies for dealing with intellectual property in the digital age, going well beyond the more narrow area of counterfeit goods.

"To call this an anti-counterfeiting treaty is in many ways to sell it short," University of Ottawa law professor Michael Geist said this morning during a press conference. "What we are really dealing with at the end of the day is a copyright treaty."

The heightened criticism comes as the U.S. Trade Representative and his counterparts from more than three dozen other nations converge on Guadalajara, Mexico, for four days of negotiations, the seventh and longest such meeting since ACTA discussions began. There is not a firm deadline for concluding the agreement, but negotiators have signaled that they hope to finalize it this year.

But the secrecy that has attended each phase of negotiations has raised concerns among advocacy groups and some lawmakers who worry that it is giving a green light to industries such as software and entertainment that are eager to establish a more stringent international framework for guarding against piracy. Anyone granted access to the draft documents of the agreement is bound to silence by a non-disclosure agreement, though Geist and others have managed to obtain leaked copies that they say indicate that ACTA could invite a much more restrictive copyright regime, particularly in the sections dealing with the Internet.

The U.S. Trade Representative and other negotiators have justified the secrecy on the grounds that some countries have made it a condition of negotiating in good faith, though the mounting criticism appears to have resonated to some extent, as the proceeding beginning today in Mexico includes a discussion on transparency.

As to the substance of the agreement, Geist said that leaked documents suggest that ACTA could seek to set as a standard a three strikes rule, the controversial policy that individuals suspected of sharing copyrighted content online could see their Internet access cut off after three infractions.

Additionally, the agreement could include provisions that prevail on ISPs to block access to sites linked to copyright infringement, an arrangement that critics warn is a slippery slope that would cast network providers in the role of copyright cops.

The extent to which ACTA would redraw the legal framework of the participating nations is unclear. In the United States, ACTA would be classified as an executive agreement, meaning that it would not require congressional approval to take effect.

"U.S. negotiators have been justifying ACTA by saying they have been coloring within the lines of U.S. law," said Rashmi Rangnath, an attorney with the Washington-based digital-rights group Public Knowledge.

But she warned that the agreement would have the inevitable effect of setting precedent in the area of online copyright that, unlike counterfeit statutes, still resides in nebulous legal territory, and that the agreement could hamstring any legislative effort in Congress to update digital copyright.

"Case law is still in an evolving state," she said. "The lines of liability are not clearly drawn. ACTA by fiat of an international agreement should not draw these lines."

TAGS: Copyright, piracy, government, intellectual property, ACTA




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