Michael Geist on ACTA: Exclusive Two-Track Process Revealed

Professor Geist’s latest update on ACTA shenanigans in Canada came out on July 28, in The Toronto Star.

You really should go read the whole thing, but here are my two favorite chunks:

What [Canadian Industry Minister Jim] Prentice did not reveal is that officials have been developing plans to establish an “insider” group comprised solely of government departments and industry lobby groups that would be provided with special access to treaty documentation and discussion.

The decision to create a two-track approach for ACTA consultations appears to have been deliberate. The same documents discuss the prospect a public track that would include a general public consultation (which was held in April) along with the insider group that would be privy to treaty information

…

there is absolutely no representation of the public interest — no privacy representation despite the obvious privacy implications of the treaty (the Office of the Privacy Commissioner of Canada was not included on the government invitee list), no consumer representation despite the effects on consumer interests, and no civil liberties representation on a treaty that could fundamentally alter Canadian civil rights.

The government documents indicate that members would engage in “in-depth exchanges on technical negotiating issues” and therefore be required to sign confidentiality agreements in order to participate.

This is egregious stuff. Kudos to Geist for breaking the story – and unfortunate that it hasn’t gotten much play in the international press.

I also have to wonder whether this formalized two tier approach been pursued elsewhere?

FOIA request anyone?

ACTA Surprise! More Secret Meetings (this time in D.C.)

I.P. Justice has linked to a freshly leaked memorandum addressed to “ACTA Negotiators” from unnamed “Business Associations.”

The memo articulates positions consistent with the draconian enforcement measures sought by many content owners throughout the furtive ACTA process. In both its scope and tone, it also resembles quite closely the earlier submissions of comments by groups such as the RIAA, the International Trademark Association (ITA), and others.

The memo underscores the extent to which these organizations expect that the wealthy governments of the world will foot the bill for enforcing their private rights. It’s my understanding that in U.S. law, the financial and legal burden of enforcement of private rights traditionally falls on the rights holder. I’m pretty sure that’s why the government isn’t usually the one to sue you if you trespass on your neighbor’s backyard. In the brave new world envisioned by these business associations, suspected infringement of copyrights or trademarks would be sufficient to justify search, seizure and other forms of state intervention.

From where I’m sitting, that sounds an awful lot like a seriously invasive form of corporate welfare.

However, the memo also reveals one detail that the United States Trade Representative, the Canadian government, the European Commission, and other negotiating parties have declined to make public: the negotiations for ACTA are continuing – in secret – right now in Washington, D.C.!

In off the record conversations with government officials, I had been led to believe that late July was a target date for the second round of ACTA talks. However, there has been some misdirection and sleight of hand about exactly when and where these meetings would happen.

Turns out the ACTA negotiators from the U.S. (presumably members of the Office of the U.S.T.R.) do not mind passing such information along to “Business Associations” in a more timely and open manner.

As an interested citizen who submitted my own comments to the USTR about ACTA back in March, I find the USTR’s preferential treatment of corporations who support ACTA irresponsible and reprehensible.

The terms of the proposed agreement are too important for the future of the digital economy, global trade, the Internet, and international legal precedent for the negotiations to continue in secret.

As I’ve said before, this is no way to build a “new consensus” on the governance of trade in informational goods. Instead, it is a shameless tactic to railroad bad policies based on flimsy evidence and dubious intent.

ACTA Rejects the Market in Favor of Corporate Welfare

The latest issue of the Cato Institute’s Cato Unbound addresses the Future of Copyright. The lead essay written by Rasmus Fleischer of Piratbyrån, offers some excellent critical points on ACTA.

Here’s an except that is characteristic of his analysis (my emphases):

Copyright enforcement weakens general law enforcement. And it’s expensive. The proposed ACTA treaty would create international legislation turning border guards into copyright police, charged with checking laptops, iPods, and other devices for possibly infringing content, and given the authority to confiscate and destroy equipment without even requiring a complaint from a rights-holder.

It’s characteristic of the dishonesty found in copyright law that the ACTA has been promoted as a treaty aimed to save people from dangerous fake medicine, which has very little to do with issues like “ISP responsibility.” While patents, trademarks, and copyright are significantly different in many respects, copyright industry lobbyists prefer to present their draconian enforcement strategies as a matter of “intellectual property” in general.

The real dispute, once again, is not between proponents and opponents of copyright as a whole. It is between believers and non-believers. Believers in copyright keep dreaming about building a digital simulation of a 20th-century copyright economy, based on scarcity and with distinct limits between broadcasting and unit sales. I don’t believe such a stabilization will ever occur, but I fear that this vision of copyright utopia is triggering an escalation of technology regulations running out of control and ruining civil liberties. Accepting a laissez-faire attitude regarding software development and communication infrastructure can prevent such an escalation.

This argument underscores several reasons why it is completely disingenuous to equate strict IP enforcement with anything resembling a “free market.” Such an equation was an integral part of the Washington Consensus obsession with “strong property rights” and infiltrated the global trade regime with the formation of the WTO and the TRIPS agreement.

It is high time to unbundle reigning notions of property and consider whether digital, informational assets deserve comparable treatment as scarce, physical resources.

Make no mistake: ACTA is an attempt to take corporate welfare for the copyright and trademark industries to a global level. As such, it threatens the wealth, welfare, and stability of the global political economy.

Cheers to Fleischer for providing another clear and articulate statement against ACTA. The question remains, will the USTR, EC, Japan, and the other ACTA negotiating parties listen?