Secret Negotiations: Facts and Myths about the Chilling Implications of ACTA

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Last updated on February 7th, 2013 at 06:58 pm

While this article sorts through the myths, realities and things in between, I cannot emphasize enough that ACTA is a bad agreement. I do dispute disinformation circulated about ACTA because there are several factual and compelling reasons to oppose this agreement and arguing against provisions that don’t exist, or have been distorted, weakens the ability to effectively and successfully point to the very real problems ACTA creates.

Reality: ACTA was negotiated behind closed doors.

Secret negotiations began shortly after Japan proposed an international agreement to combat theft of intellectual property during the G8 Gleneagles Summit in 2005.

In 2006, the Bush administration and Japan initiated efforts to establish a plurilateral agreement. Other countries known to have taken part included Canada, the European Union and Switzerland.

An initiative was announced in October2007.

“Official” negotiations began in 2008 with Australian, Mexico, Morocco, New Zealand, Korea and Singapore joining the talks.

During the first round of negotiations, an advisory committee comprised of Pharmaceutical Research and Manufacturers of America and the International Intellectual Property Alliance was established. This advisory committee was consulted on the contents of the draft agreement.

Some corporations were part of the United States’ Trade Representative advisory committees also had access to classified documents relating to ACTA. Aside from the Pharmaceutical Research and Manufacturers of America and the International Intellectual Property alliance, a number of other corporations were involved. A FOIA request in 2009 revealed that Google, eBay, Intel, Dell, News Corporation, Sony Pictures, Time Warner, and Verizon received copies of the draft.

The public was made aware of these negotiations when Wikileaks uploaded one of the discussion papers in May, 2008.

This leak and others disclosed several disturbing ideas such as:

There was a proposal to create an international agency with the power to force Internet Service providers to disclose information about subscribers who were suspected of copyright infringement without a warrant.
Another proposal suggested creating an ACTA Oversight Committee which would have the power to:

Supervise the implementation of ACTA.
Establish and delegate responsibilities to working groups.
Assist is dispute resolution on issues pertaining to the implementation or application of ACTA.
Assist in preventing duplication of other international efforts pertaining to IP enforcement.
Seeking input from non-governmental entities on the best practices in the field of intellectual property enforcement.
Endorsing best practice guidelines of ACTA’s implementation.
Supporting international organizations in the field of intellectual property law enforcement.
Assisting governments that are not parties to ACTA develop assessments of ACTA’s benefits.
Adopt its own rules of procedure.

Through subsequent leaks, the contents of ACTA were revealed as well as the names and positions taken by the parties during the Luzen round of negotiations. The presumed final and revised text was leaked on November 16, 2011 – one day after it was agreed to.

While one cannot speculate as to what could have been, it seems unlikely that we would know about ACTA had it not been for these leaks.

Subsequent to the introduction of the draft agreement, there were several official rounds of negotiation which began in 2008 with a few countries.

The nature of negotiations during the Bush Administration’s participation remains a mystery. We can conclude, however, that the Bush Administration supported participation by corporations and the secrecy surrounding ACTA.

By the time the fifth round of negotiations occurred in Morocco, on July 16^th and 17^th 2009, the following countries were participants in the discussions: Australia, Canada, the European Union (represented by the European Commission, the EU Presidency (Sweden) and EU Member States), Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the USA.

This was the first round of negotiations that the Obama Administration participated in. The scope of the negotiations entailed the following topics: international co-operation, enforcement practices and transparency.

Round six took place in Seoul Korea in November 2009. Participants in these negotiations included Australia, Canada, the European Union, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States of America. Enforcement in the digital environment and criminal enforcement were the topics on the agenda.

The same participants discussed the same topics during the seventh round of negotiations, this time in Mexico. New Zealand hosted the eighth round of negotiations in April, 2010. The parties discussed boarder measures, enforcement procedures in the digital environment, criminal enforcement, civil enforcement and transparency.

The final text was signed on October 1, 2010.

So aside from signing a bilateral version of ACTA with Japan, the Bush administration played an active role in the effort to establish a plurilateral agreement. The Bush Administration participated in four of the eight rounds of negotiations which means it had responsibility in shaping the contents of most aspects of ACTA. By appearances, the Bush Administration supported the inclusion of corporations, and the secrecy that went with these negotiations.

It is equally true, by all appearances, that the Obama administration also supported these aspects of the negotiations.

Myth: ACTA criminalizes intellectual property theft for the first time.

Reality: In the United States, intellectual property theft was recognized as a criminal act by the Bush Administration, under 17 U.S.C. § 506 and 18 U.S.C. § 2319 in 2007.

As the history of ACTA illustrates, while the concept of ACTA originated in 2005, the realization of this trade agreement didn’t occur until 2011. In other words, intellectual property theft was established in U.S. criminal law before ACTA was negotiated, let alone realized as a trade agreement.

Myth: ACTA is a treaty.

Reality: Like many others, I made the mistake of calling ACTA a treaty in a previous article. In reality, an agreement like ACTA is made between governments, not States. In international law, there is no difference. In U.S. law the difference between an agreement and a treaty is whether the agreement was made between governments or between states.

Under the constitution, treaties (agreements between states) can be signed by the president but must have the Senate’s advice and consent to ratification before they become law.

However, an international agreement like ACTA is between governments. Therefore, ACTA can be signed by the president and take effect without necessarily acquiring the advice and consent of Senate. Also, there’s an understanding that international agreements do not require the Congress to enact new legislation and that the President can carry them out as part of his overall duty to take care that the law be faithfully executed.

Myth: ACTA is a threat to our freedoms in the United States.

Reality: Largely not true. The one area of concern is whether ACTA requires parties to the agreement to enact changes in domestic law to comply with the trade agreement. The vagueness of ACTA’s language leaves this open to interpretation. Techdirt makes the following observation:

“As you read through the document, however, what becomes clear is that nothing is very clear in ACTA, and there are all sorts of weasel words and poorly-defined aspects to the drafting. What that means is that it all depends on the interpretation. If certain sections are interpreted one way, then ACTA clearly conflicts with US law. If they’re interpreted in a more permissive fashion, then the US can walk the tightrope and comply with ACTA without having to change US law. But the problem is that it’s not at all clear. This leads ACTA supporters to be in a position to say, “well, it doesn’t require changes to US law,” and then not have to deal with the issue that, down the road, lobbyists (and other countries) will inevitably point to language in ACTA and push the US to change its laws in order to comply. That’s the really nefarious part about all of this.”

Techdirt’s observations reflect a valid concern about vagueness and where it can lead. The thing is, assuming someone thinks the U.S. is not in compliance, what can they do about it? They can lobby for oppressive laws like SOPA and PIPA. We can and should refuse. The other option is a law suit.

In article 38, disputes over ACTA compliance are resolved by the World Trade Organization’s (WTO) dispute settlement mechanism. However, we don’t recognized legal pronouncements about our law from international judicial bodies.

As such, ACTA does not represent a threat to freedoms within the United States. The only real threat is Congressional capitulation to lobbyists advocating domestic laws like SOPA and PIPA.

Myth: ACTA brings censorship to the United States.

Reality: As noted above, there are disturbing provisions in ACTA. However, those provisions, as such, do not bring censorship to the United States because unconstitutional enforcement of ACTA within the United States is really non-existent.

Within the context of our law, theft of intellectual property is not protected under the first Amendment, As noted by MICHAEL D. BIRNHACK’s analysis of Eldred v. Ashcroft (1716. Eldred v. Reno, 74 F. Supp. 2d 1, 3 (D.D.C. 1999), aff’d, 239 F.3d 372 (D.C. Cir. 2001)

“The district court rejected the First Amendment argument in few words, noting that the claim is not supported by relevant case law. Relying on a D.C. Circuit precedent, the court stated that “there are no First Amendment rights to use the copyrighted works of others.” (my emphasis)

The use of stolen intellectual property is not protected by the first amendment according to our jurisprudence. Therefore, one cannot reasonably conclude that ACTA is a threat to our first amendment rights as it pertains to the use of stolen intellectual property.

This is far from an endorsement of ACTA. It was negotiated in secret by governments and with the “advice” of the same corporations that pushed for SOPA and PIPA. It will have a chilling effect on open source information and cyber trade. Without question, ACTA will have an adverse effect on the freedoms of people in countries in which freedom of expression is limited. It also has a great potential to adversely affect the freedoms people living in countries that recognize and are bound by the WTO’s dispute settlement mechanism. The reality of ACTA is bad enough. We really don’t need to rely on myths to convey just how destructive this trade agreement is.

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