Under a veil of secrecy, the Office of the U.S. Trade Representative hosted the 10th round of negotiations on the proposed Anti-Counterfeiting Trade Agreement in Washington last week.
While the agreement is aimed at increasing international cooperation in curbing the piracy and counterfeiting of intellectual property, it has provoked tension about whose job it is to police the protections afforded to rights holders. The issues addressed under the agreement go far beyond the traditional concept of counterfeit -- such as fake designer bags -- into digital IP enforcement and liability matters. The agreement, some stakeholders say, could harm business and consumers if not done correctly.
Under ACTA, companies could face "greater exposure to liability overseas for things that are legal and legitimate, and in fact encouraged, in the United States," said Matthew Schruers, a senior counsel at the Computer & Communications Industry Association. Much is at stake for the technology sector: The digital IP provision of the agreement could make Internet service providers, technology providers and online intermediaries subject to onerous and unfair liability, critics say.
The problem, Schruers and others say, is that the draft ACTA agreement exports the more stringent protections of U.S. IP law into other countries without the balance of safeguards, such as the fair use doctrine of U.S. copyright law.
Such digital protections would benefit the entertainment industry, which struggles with weak IP enforcement in foreign countries. Industry groups that have voiced support for the agreement include the Entertainment Industry Guild Union and American Association of Independent Music.
CCIA, along with a small group of industry stakeholders including AT&T, Google, the Copyright Alliance, the Motion Picture Association of America and the Recording Industry Association of America, attended an informal lunch with the negotiators last Thursday. Nothing substantive was discussed, Schruers said.
Civil society groups, including Public Knowledge, Knowledge Ecology International and Oxfam, attended an informal lunch with negotiators on Tuesday.
Since the negotiations began in June 2008, industry and civil society groups have criticized the ACTA talks for lacking transparency. The text produced during the 10th round of negotiations has not been released, and the meetings were closed to the press.
Critics who say the ACTA negotiations lack transparency are "over the top," according to EU trade spokesman John Clancy.
"We have informed stakeholders on several occasions in detail and published the full draft text already once.... There is nothing secretive -- quite the contrary," he said. However, he laments the decision of one party to withhold publication of the text devised during last week's talks. Without being able to raise the text, it's much more difficult to defend criticism, he added. USTR released an official version in April, but it does not publish updated versions after every round of negotiations.
It's always the United States, sources familiar with the situation say, that refuses to publish the text. When asked the reason for withholding the text from the 10th-round talks, USTR spokeswoman Nefeterius McPherson said that consensus had not been reached to do so.
The next, and possibly final, round of talks will take place in Japan this September. Negotiating this agreement are Australia, Canada, EU member states, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States.
If an agreement is ironed out, a final version will be made public before the negotiating partners sign it. As an executive agreement, the treaty does not require congressional oversight, and can be ratified by the president.
Harvard law professors Lawrence Lessig and Jack Goldsmith have argued that the scope of issues addressed by ACTA exceed the legal limits of an executive agreement and should be subject to congressional approval and more public deliberation.
USTR maintains that ACTA won't change U.S. law and notes that international trade agreements require confidentiality sometimes "to enable officials of participating governments to engage in frank exchanges of views, positions, and specific negotiating proposals, and thereby facilitate agreement on complex issues."