Why is an intellectual property treaty being negotiated in the name of the US public kept quiet as a matter of national security and treated as "some shameful secret"?

Solid information on the Anti-Counterfeiting Trade Agreement (ACTA) has been hard to come by, but Google on Monday hosted a panel discussion on ACTA at its DC offices. Much of the discussion focused on transparency, and why there's so little of it on ACTA, even from an administration that has made transparency one of its key goals.

The reason for that was obvious: there's little of substance that's known about the treaty, and those lawyers in the room and on the panel who had seen one small part of it were under a nondisclosure agreement.

In most contexts, the lack of any hard information might lead to a discussion of mindnumbing generality and irrelevance, but this transparency talk was quite fascinating—in large part because one of the most influential copyright lobbyists in Washington was on the panel attempting to make his case.

Steven Metalitz represents clients like the MPAA and RIAA, and he's quite good at what he does. If there's a copyright-related issue being discussed in DC, he has a hand in it. Over the last year, he has used his position to argue that consumers should have no ability to strip DRM from music or video tracks even if an online store takes down its authentication servers.

He has also argued against the Obama administration's stance at the World Intellectual Property Organization, where he opposes a treaty on copyright exemptions for the blind. The reason: international copyright laws should only force copyright protections and enforcement on signers, but exemptions to copyright must never be anything more than "permitted."

Metalitz took on three other panelists and a moderator, all of whom were less than sympathetic to his positions, and he made the lengthiest case for both ACTA and its secrecy that we have ever heard. It was also surprisingly unconvincing.

Parsing the unknown



ACTA is currently being hashed out by 40 countries apart from any existing international process such as WIPO or the WTO. No government will show draft texts of the treaty, though the public looks likely to be offered a draft once negotiations are complete (when it's too late to make substantive changes).

Far from covering "counterfeiting," ACTA covers a host of issues that include Internet infringement of copyrighted works. That's key, said Metalitz, because one in ten US jobs depends on copyright protection.

A legislative aide for Rep. Zoe Lofgren (D-CA) retorted that the same stats show just how many companies rely on fair use, copyright exceptions, DMCA safe harbors, and Communications Decency Act safe harbors. ACTA "can't just be about going to the max for enforcement," he said.

But because it's hard to argue specifics when it comes to ACTA, the talk turned to the question of why we can't see the text. Jamie Love of Knowledge Ecology International, a group which has obtained many of the leaked documents about ACTA, noted that all 40 countries involved could see the text, "every lobbyist in K Street who has the phone number of USTR can get access to what's available in the proposal, any one of the thousand members of the [USTR] advisory boards that are cleared advisors has the right to ask for access to these documents," but voters do not.

If the whole future of our economy depends on protecting the creative industries, why is an intellectual treaty being done "as some shameful secret?"

Metalitz said that ACTA so far has been more transparent than numerous other trade agreements, but Love pointed out that the major international agreements on these issues (TRIPS and the WIPO treaties) have been far more open. And, under pressure to open up, WIPO and the WTO have both allowed nonprofit civil society groups access to debates and negotiations over the last decade—and, suddenly, the agreements coming out of those bodies became more pro-consumer. WIPO also regularly posts drafts, working papers, and proposals online.

Past free trade agreements have been handled in a similar fashion.

"Steve's embarrassed by the content of the negotiation or he would be more supportive of transparency," said Love, not one to hold back in his rhetoric. Keeping negotiations secret is how "you get big fees to be a lobbyist," since only the "insiders" have access to the process.

Frank discussions

Metalitz never provided a cogent case for why it might be acceptable to negotiate such an agreement in secret when so much of the public clearly wants to be involved. When pressed most directly on the issue, he punted, criticizing those who oppose protecting intellectual property.

But he also made the fair point that he's not the one doing the negotiating. The US Trade Representative, which handles ACTA, is ultimately responsible. Though it has repeatedly pledged transparency, none has been forthcoming. Canadian law professor Michael Geist, going back through the few documents that we do have, believes that the US is one of the primary obstacles to such transparency.

Even the MPAA, one of Metalitz's top clients, has publicly called for transparency on ACTA to remove the "distraction" that the issue has become. Such transparency would require the assent of all the governments involved in the negotiations. As the head of USTR has indicated, the ACTA talks might break down completely without secrecy, and it's clear that many governments don't actually want their own people to see the proposals being made and to shape their outcome.

This isn't surprising, of course, since international groups like WIPO and WTO already exist to tackle these kinds of issues. But those groups would be more open than the ACTA process, and they would force countries like US, Canada, Japan, and the EU to involve more countries. Much easier to form a "coalition of the willing" instead.

The USTR has claimed that it needs the privacy to have a "frank exchange of views," though WIPO has managed to work on major international IP legislation without such total secrecy. No one argues that every moment of the negotiating sessions needs to go on YouTube, or that there is never a place for an off-the-record exchange of views; but members of Congress like Mike Doyle (D-PA), Sherrod Brown (D-OH), Bernie Sanders (I-VT), and Ron Wyden (D-OR) have all blasted USTR in recent weeks for not taking basic steps, such as offering drafts to the public.

Several of the panelists agreed that this might well be because the public wouldn't support what's being done in its name, but all of them, including Metalitz, believe that the transparency issue will eventually put real pressure on the USTR to open up further. When that might happen, however, remains a mystery.