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ACTA Negotiations Held in Secrecy: How Much Should the Public be Told?

Published onMay 07, 2010
ACTA Negotiations Held in Secrecy: How Much Should the Public be Told?

There’s a new treaty coming.  The United States is busily negotiating with several trading partners to create a “new, state-of-the art agreement to combat counterfeiting and piracy,” known as the Anti-Counterfeiting Trade Agreement (ACTA).  According to the United States Trade Representative (USTR), the agreement “aims to establish standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of counterfeiting and piracy.”  ACTA is intended to enhance international cooperation and create effective international standards for enforcing intellectual property rights.  Based on the USTR summary, ACTA will include provisions on civil enforcement of intellectual property rights, border measures, criminal enforcement, and enforcement of intellectual property rights in the digital environment.  Since the negotiations are being conducted in secret, rumors abound as to what all this actually means.

In the fall of 2009, concerns about the lack of transparency in the negotiations led several groups and individuals to write a letter to President Obama.  In particular, the letter’s signatories were disturbed by reports that the USTR offered some persons access to information about the negotiations.  These persons were then restricted from discussing the information by non-disclosure agreements.  Among those offered access to the ACTA negotiation information were a “large number of business interests, but very few public interest or consumer groups, and there were no opportunities for academic experts or the general public to review the document.”

The USTR responds to accusations about secrecy in the “Summary of Key Elements Under Discussion” available on its website, claiming it is “accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiations.”  Moreover, according to the letter to President Obama, officials at the USTR have indicated that this policy of selective release of information, protected by non-disclosure agreements, addresses the demands for transparency.

At least one blogger disagrees with USTR’s assessment, maintaining that the level of secrecy involved in the ACTA negotiations is not standard.  Michael Geist indicates that the two World Intellectual Property Organization Internet treaties, WCT and WPPT, were “negotiated in a completely open meeting at the Geneva Convention Center.  The public was allowed to attend without accreditation.  The draft texts for the WCT and the WPPT were public, and the U.S. government requested comments on the draft texts, which were available…from the U.S. Copyright Office.”

Recently, the European Parliament has also expressed concern over the secrecy of the negotiations.  A March 10, 2010 resolution calls for release of ACTA texts, public access to negotiations, and prohibits the European Union from continuing to hold secret discussions with the other ACTA parties.

The goal is to complete negotiations for ACTA in 2010.  Along with Australia, Canada, the European Union (and its twenty-seven member states), Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, and Switzerland, the United States has engaged in seven rounds of negotiations thus far, most recently in Guadalajara, Mexico from January 26-29, 2010.  In spite of the European Parliament’s resolution, negotiations continue to be scheduled, with no announcement of plans for more transparency.  Two additional rounds of negotiations are on the calendar for the next few months, with the eighth round planned for April 12-16, 2010 in New Zealand and the ninth round in Geneva the week of June 7, 2010.

* Alayna Ness is a third year law student at Wake Forest University School of Law, graduating in May 2011.  She holds a Bachelor of Science in Business from Indiana University.  In the summer of 2010, she worked at the Securities and Exchange Commission in Los Angeles, California.  Ms. Ness will be taking the bar examination in Virginia and plans to practice corporate and securities law.

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