Verbal sparring over ACTA, USTR secrecy at Fordham IP Law and Policy Conference

April 6, 2008

Liza Porteus Viana filed a story with IP Watch yesterday that details a fascinating exchange about ACTA that took place at Fordham University’s annual Intellectual Property Law and Policy conference. Check out the whole article (that goes into detail about some other aspects of the USTR’s National Trade Estimates) or settle for the following very-long-quote:

USTR also is touting the multinational Anti-Counterfeiting Trade Agreement (ACTA) as a way to fill in enforcement gaps with the TRIPS agreement and other treaties. The language of ACTA, which was announced last fall (IPW, WTO/TRIPS, 24 October 2007), has not yet been released to the public – which has many consumer groups up in arms. USTR put a notice in the Federal Register soliciting comment on the agreement.

“Until you have economies of the world effectively cooperating together, it’s difficult to be as effective as law enforcement would like to be,” Victoria Espinel, who served as the first assistant US Trade Representative for Intellectual Property and Innovation, said last week during an intellectual property law conference at Fordham University in New York City. “It is very much the hope” of USTR and other participating countries “that more and more countries will join,” she added.

Eddan Katz, international affairs director at the Electronic Frontier Foundation, said the US “shouldn’t rush on this one.”

“In terms of combating piracy, this is the wrong instrument,” Katz said, arguing that it is ill-designed in terms of maintaining the integrity of the law and improperly puts enforcement responsibility in the hands of customs officials at airports.

Jamie Love, director of Knowledge Ecology International in Washington, D.C., argued that the US government is not being forthcoming enough on what exactly ACTA will do, since it has been more than five months since ACTA was announced and the text still has not been distributed publicly. “I think that’s also not helpful to the overall effort – the transparency issue,” Love said.

Steven Tepp, a policy planning adviser to the US Copyright Office who has been involved in some of the ACTA discussions going on at USTR, said he has been told that the document is subject to “special handling,” as it contains material dealing with other governments. “To the best of my knowledge, that document has not been given to anyone outside the US government,” he said, countering Love’s statement that some drafts have been circulated to “certain lobbying groups.”

A testy exchange erupted when Love asked Tepp – as a representative of the US government privy to some ACTA discussions – if he could meet with him to discuss the measure. Tepp agreed, until Love asked if he could bring other consumer groups and, perhaps, some media with him, so the broader public would know what’s going on.

“Jamie, please don’t manipulate it – you asked me for a meeting,” Tepp said. “I’m very happy to meet with you.”

Countered Love: “What I’m asking for, both from USTR and the Copyright Office, is to open up the process, have a meeting that is truly public.”

Katz then piped in, asking Tepp: “How big is your office? Can other people come? …There are multiple points of view.”

There’s a lot of amazing stuff to unpack here. First of all, Tepp’s assertion that ACTA text has not been distributed to anyone outside the U.S. government seems highly improbable. Consider the following: when you line up the text of the USTR’s ACTA Fact Sheet and the Australian DFAT’s discussion paper and the Canadian government’s Discussion Paper and the European Commission’s Fact Sheet the four documents practically match verbatim. I know these governments talk a lot, but I strongly doubt that such a consistent use of language, examples, and layout is a mistake. Clearly there are texts circulating. It’s only a question of which texts and how much information is being withheld from public scrutiny.

Secondly, the idea that industry lobby groups are not up to their elbows in this process is also blatantly absurd. Tepper emphasized that industry lobby groups do not have access to the latest drafts of the agreement. That may or may not be so. The truth of the matter is that his distinction is a red herring. Take a look at some of the most recent statements about ACTA made by members of the International Trademark Association (INTA) and International Chamber of Commerce (ICC):

“Expectations for ACTA are high. This proposed agreement has the potential to deliver significant improvements in establishing stronger international guidelines and standards, and providing governments with clear directives for action,” said INTA Executive Director, Alan C. Drewsen

“The governments that so far have agreed to engage in negotiating the new agreement have made a commitment to complete the process and we urge them to get started without further delay,” said Bob Wright, Co-Chairman of the ICC’s Business Action to Stop Counterfeiting and Piracy (BASCAP) initiative and Vice Chairman and Executive Officer, General Electric. “We recognize the work involved in completing an agreement of this magnitude, and we stand ready to work with the governments involved to move the agreement forward.”

I picked out these quotes from the an April article mentioning ACTA published by the AGIP News Service. What the statements reveal are several business leaders practically tripping over themselves to line up in support of this potential agreement. And the USTR wants us to believe that they only talked about the weather with these guys in their earlier meetings?

The background section of the Australian DFAT’s discussion paper suggests an alternative history: it appears that several industry lobby groups funded events like the 2004 Global Congress to Combat Counterfeiting in order to bring the government trade representatives’ attention to these issues. The question of whether the lobbyists have access to the latest round of emails floating around in the USTR’s office is academic and Tepper probably knows it. The point is that organiations like INTA, the ICC, and BASCAP have participated in ACTA from day one. To suggest otherwise is misleading.

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