Secret IP Treaty Proposal Rubs Tech Wrong

Civilian libertarians, Internet privacy watchdog groups and libraries are irate over the secret negotiations in Seoul, South Korea, involving ACTA (International Anti-Counterfeiting Trade Agreement). The negotiations, they claim, heavily favor Hollywood interests pushing tougher international copyright laws and, moreover, the entire process has been shrouded in secrecy.

The latest round of the treaty talks concluded Nov. 6 with a seventh round of negotiations scheduled for January in Mexico. Participants in the negotiations included the United States, Australia, Canada, the European Union, Japan, Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland.

According to documents leaked earlier this week, the United States favors forcing international ISPs to proactively police copyright on user-contributed material and would require ISPs to cut off the Internet access of accused copyright infringers or face liability. In addition, the U.S. negotiators are seeking international notice and take down agreements and mandatory prohibitions on breaking DRM systems. The provisions are all favored by major U.S. content owners.

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According to the USTR (U.S. Trade Representative), the talks were "productive and focused on enforcement of rights in the digital environment and criminal enforcement. Participants also discussed the importance of transparency including the availability of opportunities for stakeholders and the public in general to provide meaningful input into the negotiating process."

But it is the lack of transparency and openness about the negotiations that prompted the watchdog groups to write President Obama Nov. 5 complaining about the process. The ACTA negotiations began under former President Bush. The Obama administration has continued the Bush policy of refusing to make public the draft text of the agreement.

The Obama administration, according to the groups, has "actively resisted disclosure of relevant information during the course of litigation under the Freedom of Information Act." In addition to the secrecy around the negotiations, the groups maintain that ACTA is not a traditional trade agreement as much as it is a treaty dealing with intellectual property.

"In negotiating agreements focusing on traditional trade matters such as tariffs and trade barriers, confidentiality regarding some negotiating positions may be appropriate. But ACTA aims to set international legal norms, potentially driving changes to substantive intellectual property legal regimes on an international basis," the groups said in the letter to Obama. "Attempts to force a multilateral intellectual property agreement through trade processes unsuited for it does a disservice to citizens, public policy, and the USTR alike."

The groups said the information that is known about the treaty negotiations shows that the terms are heavily weighted in favor of big media companies.

"With respect to ACTA's substance, we remain concerned that the terms may not adequately account for all of the interests that would be affected," the letter states. "Intellectual property law requires a balance between the benefits conferred upon creators and the rights of the general public to access and use those creations in free discourse and for the public good. Yet the public and the industries enabling such uses would face crippling liability under an improperly calibrated intellectual property regime. ACTA could increase the risk of participating governments taking an imbalanced approach."