Last week, we observed that major content companies have enjoyed a steady drumbeat of victories in Congress and the courts over the last two decades. The lobbying and litigation campaigns that produced these results have a counterpart in the executive branch. At the urging of major copyright holders, the Obama administration has been working to export restrictive American copyright laws abroad. The Anti-Counterfeiting Trade Agreement (ACTA) is just the most visible component of this ambitious and long-running project.

Ars Technica recently talked to Michael Geist, a legal scholar at the University of Ottawa, about this effort. He told us that rather than making their arguments at the World Intellectual Property Organization, where they would be subject to serious public scrutiny, the US and other supporters of more restrictive copyright law have increasingly focused on pushing their agenda in alternative venues, such as pending trade deals, where negotiations are secret and critics are excluded.

The growing opposition to ACTA in Europe suggests this strategy of secrecy may have backfired. But the US is not giving up. It has already begun work on its next secret agreement, ealled the Trans-Pacific Partnership. Geist told Ars that restoring balance to copyright law will require reformers to be as determined as their opponents have been. He said that donating to public interest groups that focus on international copyright issues is the best way to make sure that the public interest is well-represented.

Exporting copyright law

Countries have been negotiating international copyright treaties for more than a century, but the passage of two treaties in the 1990s represented a turning point in international copyright law.

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, signed in 1994, made protection of copyrights a requirement of membership in the World Trade Organization. Countries that failed to meet international copyright standards could face trade sanctions. The 1996 World Intellectual Property Organization Copyright Treaty further ratcheted up the minimum requirements for copyright protection—requiring, for example, that signing countries regulate the circumvention of digital rights management schemes.

WIPO's relatively open structure meant that major copyright holders didn't get everything they wanted in the 1996 treaty. For example, Geist said, the United States was unable to get the strong anti-circumvention language it preferred into the WIPO treaty.

"WIPO is a place that's more open than it used to be," Geist told Ars. "Because of the consensus-based approach, there is a necessity to engage in negotiating." Indeed, in recent years reformers have begun to make headway themselves. Treaties to liberalize copyright in ways that benefit libraries and the blind are now under consideration at WIPO.

So, Geist said, the US has increasingly engaged in forum-shopping, bypassing WIPO and pushing for stronger copyright protection in a wide variety of other venues. For example, the United States has negotiated a series of bilateral trade agreements with nations such as South Korea, Australia, and Chile. While they're branded as free-trade deals, they also require the other country to adopt the more punitive copyright regime favored by the United States.

The negotiations over the Anti-Counterfeiting Trade Agreement were part of this trend. In contrast to the relatively open WIPO process, ACTA was negotiated in secret by a relatively small number of mostly wealthy countries. The developing nations who would be the most likely to object weren't invited to participate. The plan was to present the finished treaty to the world on a "take it or leave it" basis.

Unfortunately, the plan didn't work as well as its backers had hoped. Early drafts of the treaty leaked, giving opponents time to organize against the most extreme provisions in the treaty. And the secretive and non-representative nature of the negotiation process created a bad taste in the mouths of many stakeholders. Concerns over ACTA's secretive drafting process may have been as important as any of the treaty's substantive provisions in generating European opposition. If Europe fails to ratify ACTA, it will dramatically weaken the treaty.

Try, try again

But the US isn't giving up. To the contrary, the US and its industry backers seem to have concluded the problem with ACTA was that they didn't try hard enough to lock down the negotiating process. So they're now plowing forward with the Trans-Pacific Partnership. This time, the US has cut the leak-prone Europeans out of the process, limiting negotiations to eight countries such as New Zealand and Peru that are much easier for the United States to intimidate. Presumably, the goal is to enshrine the US's preferred copyright policies in the TPP and then use the TPP as a template for future agreements.

Once the US gets a critical mass of countries to sign a deal, it can then use other carrots and sticks to pressure additional countries to sign on. Geist said one important tool is the so-called "Special 301" list, an annual watchlist of countries Washington considers to have insufficiently strict copyright laws. Not only will countries be pressured to sign onto ACTA, the US may also press them to implement even those provisions of ACTA that the agreement itself labels as optional.

Geist believes that the interests behind SOPA and ACTA are likely to view recent defeats as temporary setbacks. "They're not playing for next year," he said. "They're playing for 10 years and 20 years in the future."

He said that reformers can resist their agenda, but only if they play the same "long game" as their opponents. Ordinarily, the most important thing a citizen of a democracy can do to stop bad public policies is to call their legislators. But in this case, most of the action is occurring in international organizations where individual legislators have little influence.

To fight agreements like ACTA requires organizations with the sophistication and resources to navigate the complex world of international diplomacy. Geist pointed to Knowledge Ecology International, Public Knowledge, and the Electronic Frontier Foundation as examples of organizations with a track record of resisting the drive toward ever-stronger copyright protection.These organizations are "WIPO regulars" well positioned to stay in the trenches and ensure the public interest is well-represented regardless of the venue. Geist said that donating to these organizations is the most effective way for ordinary voters to help resist the worldwide trend toward ever-more-extreme copyright laws.