ACTA Negotiations Will Continue into 2009

ACTA negotiations will continue it’s usual secrecy into 2009 after wrapping up in Paris. Reportedly, they will continue negotiations in Morocco.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

The Anti-Counterfeiting Trade Agreement (ACTA) roared into headlines earlier this year over several provisions that were leaked onto Wikileaks. A follow-up leak was also leaked on the same website. Currently, Michael Geist notes that the secret meetings that would affect many countries around the world in significant ways will continue into 2009 in Morocco. From the Canadian Department of Foreign Affairs and International Trade press release:

Discussion on the proposed Anti-Counterfeiting Trade Agreement (ACTA) continued in Paris, December 15-17, hosted by the European Union. Participants in the discussion included Australia, Canada, the European Union, represented by the European Commission and the EU Presidency (France), Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States (alphabetically ordered). EU Member States also attended the meeting.

The meeting was opened by French Trade Minister, Mrs. Anne-Marie Idrac, who reaffirmed the strong commitment of the EU in favour of intellectual property rights (IPR), against counterfeiting and piracy, and called for constructive and ambitious negotiations.

Participants reaffirmed their commitments to negotiate an agreement to combat global infringements of IPR, particularly in the context of counterfeiting and piracy, by increasing international cooperation, strengthening the framework of practises that contribute to effective enforcement, and strengthening relevant IPR enforcement measures themselves. This meeting was the fourth in a series of negotiations to discuss proposals concerning different aspects of the proposed agreement.

The discussion focused on international cooperation, enforcement practises and institutional issues. Participants also continued previous discussions on criminal enforcement of IPR. They also shared information on approaches to fighting IPR infringements on the Internet. Participants made steady progress in these discussions.

One look at the second paragraph might be enough to stir some alarm bells for some digital rights advocates because it was France that has been pushing for the ‘three-strikes’ policy and circumvented European democracy to prevent any barriers to implementing it in the future. One can very well imagine what was being talked about with an advocate of the three strikes policy. This goes over top of what the press release already mentions.

If one reads the third paragraph and gets a strong sense of De-Ja-Vu, it’s not a surprise since a refers back to the MPAA’s lobbying paper to Obama, they would find the following:

One of the MPAA’s top priorities is attacking Internet piracy, through vigorous investigation and enforcement worldwide, as well as working with governments to ensure that their laws provide adequate remedies to stop internet piracy and are in full compliance with the WIPO Treaties. Achieving inter-industry cooperation in the fight against online piracy, including through automated detection and removal of infringing content is imperative to curb theft of online content, and is a priority for MPAA and its member companies.

Again, the two paragraphs from the press release:

Participants reaffirmed their commitments to negotiate an agreement to combat global infringements of IPR, particularly in the context of counterfeiting and piracy, by increasing international cooperation, strengthening the framework of practices that contribute to effective enforcement, and strengthening relevant IPR enforcement measures themselves.

[…]

The discussion focused on international cooperation, enforcement practises and institutional issues. Participants also continued previous discussions on criminal enforcement of IPR. They also shared information on approaches to fighting IPR infringements on the Internet. Participants made steady progress in these discussions.

It’s not very mysterious who is involved in the negotiations.

What we already know

The initial leaks put the spotlight on ACTA in the first place. Among many controversial provisions, there was the provision that would make border patrol search people who have any ‘digital storage device’ (iPod’s, laptops, etc.) search the owners of the technology for copyright infringement. Another one was the ‘notice and takedown’ scheme being forced onto participating countries. While it would be nothing new to the United States, it would be a complete disaster for, say, Canada who merely has a voluntary notice-and-notice scheme. Courts ruled in Canada that one needs adequate evidence before obtaining confidential information that the copyright industry wants in order to sue alleged downloaders. This is just a small sample of things ACTA would bring in to numerous countries.

An Access to Information Act Request was filed in Canada to get a better understanding of what is going on. The response was that there was basically some surveying going on in general secrecy. It involved a fact sheet and a press release as the sole means of describing what ACTA was. After some careful research a copy of what the fact sheet might have contained can be found on the USTR website and it basically says that ACTA hopes to stop intellectual property infringement through multiple channels including the internet. For some, judging by what is on that paper, it could seem like a paper promising to bring in world peace but not saying that it involves destroying all life on Earth to some who are particularly sensitive to encroachment on their rights.

More recently, the European Union posted an updated fact sheet (PDF) which, in one section, set out to deny what was already known. Among other things, the fact sheet says, “A number of “texts”, wrongly presented as draft ACTA agreements have been circulated on the web. At a preliminary stage of the discussions about the idea of a future ACTA, some of the negotiating parties have submitted concept papers, to present their initial views of the project to other partners. Some of these concept papers have been circulated on the net or commented in the press and presented as “draft ACTA texts or negotiating guidelines”, which they are not.”

The fact sheet says earlier on, “EU customs, frequently confronted with traffics of drugs, weapons or people, do neither have the time nor the legal basis to look for a couple of pirated songs on an i-Pod music player or laptop computer, and there is no intention to change this.”

Then what does the fact sheet say that’s in ACTA? It says, among other things, “ACTA will also create a new international benchmark for legal frameworks on IPR enforcement, whilst fully respecting civil liberties and the rights of consumers, as is the case for the Community acquis. It is critical to have a strong and modern legal framework —as is the case in the EU- so that law enforcement agencies, the judiciary, and private citizens have the most up-to-date tools necessary to effectively bring counterfeiters to justice. Areas for possible provisions include […] Internet distribution and information technology – e.g. mechanisms available in EU E-commerce Directive of 2000, such as a definition of the responsibility of internet service providers regarding IP infringing content.”

With the combination of this point and what was contained in the recent press release, it seems as though it’s more of a case if making sure a three-strike policy (or something similar) is in place and forcing ISPs to do what has been proven technologically impossible – stopping all potential forms of so-called “piracy”.

Still, ACTA negotiations are still in the early stages and a lot can change between now and after 2009. It’s unlikely that even the parties controlling ACTA negotiations know what will be in the final ACTA paper. Either way, someone in the ACTA negotiations is paying attention to what’s going on outside of the locked doors.

Drew Wilson on Twitter: @icecube85 and Google+.



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