The 9th round of ACTA talks concluded last week in Lucerne, Switzerland. I briefly noted the official statement last week, but a subsequent news report makes it clear that the most important development to come out of the meeting is the breakdown of a consensus on transparency. Following the New Zealand meeting in April, there was consensus achieved on the need to release a draft version of the text. It is now clear that the overwhelming majority of countries favoured continuing this approach by releasing updated versions at the conclusion of subsequent meetings. That did not happen after the Lucerne meeting, however, with both the Swiss and European Commission delegations indicating that they favoured releasing the text but that one delegation did not. It is a safe bet that the U.S. is once again the key holdout on the transparency issue.

The report also highlights the continuing disagreement on the scope of ACTA. While negotiators emphasized in a meeting with NGOs last week that patents have been removed from the border measures chapter, the extension of ACTA beyond copyright and trademark for the other chapters remains a central area of disagreement. The extension is not just a patents issue – the EU, Switzerland, and Mexico all want ACTA to cover "geographic indications", a move opposed by the U.S., Canada, and many other participants. The issue was described by the official as a "deal breaker" that will only be settled at the very end of the talks (which could come by the end of 2010).

Given the negotiators claims of progress on a number of issues (including damages), the decision to keep an updated version of the text secret represents a huge setback. It is impossible to provide effective input given the veil of secrecy associated with this treaty and asking interested parties – including the many elected officials in countries around the world – to rely on outdated texts should be viewed as an absolute non-starter.