Internet law professor Michael Geist on the battle over a controversial global anti-counterfeiting treaty. Governments want to stop counterfeiting but there are concerns ACTA goes too far Since the United States, European Union, Japan, Canada, and a handful of other countries announced their participation in the Anti-Counterfeiting Trade Agreement negotiations in October 2007, the ACTA has been dogged by controversy over the near-total lack of transparency. Early negotiations were held in secret locations with each participating country offering nearly-identical cryptic press releases that did little more than fuel public concern. The participating countries conducted four major negotiation sessions in 2008 and though the first session of 2009 was postponed at the request of the US (which was busy transitioning to a new president), the negotiations are set to resume in May in Morocco. When they do, negotiators will face two key challenges. The first involves the mounting disagreement over transparency and the value of releasing the current draft text to assuage public mistrust. Last month, the European Parliament passed a resolution calling for the public availability of all ACTA materials. Governments negotiating ACTA responded last week by releasing a six-page document that sketched a rough outline of ACTA negotiations to date. The decision to release the document only weeks after the US denied of access to ACTA documents on national security grounds, may have stemmed from the European Parliament resolution and Canadian support for an early release of the draft text. Internal Canadian government documents reveal Marie-Lucie Morin, then the Deputy Minister of International Trade (and now National Security Advisor to Prime Minister Stephen Harper), warned Minister Stockwell Day in November 2008 that "should there be no consensus among the ACTA partners to make the ACTA text public, the Department will need to develop options to address Canadian stakeholders concerns about the lack of transparency in the ACTA process". Tougher challenge Assuming that the documents are ultimately released to the public, negotiators will then face an even tougher challenge - addressing concerns over the substance of the treaty itself. While little beyond the six-page summary has been officially confirmed, there has been a steady stream of leaks in recent weeks (including new documents on Wikileaks posted over the weekend) that paint a picture of the treaty. The proposed treaty has six main chapters: (1) Initial Provisions and Definitions; (2) Enforcement of Intellectual Property Rights; (3) International Cooperation; (4) Enforcement Practices; (5) Institutional Arrangements; and (6) Final Provisions. Most of the discussion to date has centred on the Enforcement of Intellectual Property Rights chapter, which is divided into four sections - civil enforcement, border measures, criminal enforcement, and the Internet. The first three sections were addressed in meetings last year. Although there is still considerable disagreement on the final text, leaked documents indicate that the draft includes increased damage awards, mandated information disclosure that could conflict with national privacy laws, as well as the right to block or detain goods at the border for up to one year. Moreover, the criminal provisions go well beyond clear cases of commercial infringement by including criminal sanctions such as potential imprisonment for "significant wilful copyright and trademark infringement even where there is no direct or indirect motivation of financial gain". Jail time Jail time for non-commercial infringement will generate considerable opposition, but it is the internet provisions that are likely to prove to be the most controversial. At the December 2008 meeting in Paris, the US submitted a "non-paper" that discussed internet copyright provisions, liability for Internet Service Providers, and legal protection for digital locks. The paper raised questions about damage awards, liability for hosting or storing content, and the extent to which national digital lock provisions mirror the U.S. approach. This indicates that the US is feeling out its negotiating partners on the potential for an international version of its much-criticised Digital Millennium Copyright Act. The recent release along with an upcoming public meeting in Brussels demonstrates that officials are working to address the transparency concerns. If the leaked documents are accurate, however, public support for the treaty will require far more than just greater openness.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.



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