The secrecy surrounding an anticounterfeiting trade agreement that's being negotiated by several countries, including the U.S., is heightening concerns about the intent of the pact.
Adding a sense of urgency to the concerns is that the trade agreement talks are expected to move on to new Internet provisions that could have broad implications for Internet users and service providers.
Last week, two digital rights groups, the Electronic Frontier Foundation (EFF) and Public Knowledge called on the U.S. government to release more data on the agreement after a Freedom of Information Act request they had filed last year yielded little information.
Like several others, the two groups are concerned that the trade agreement is being used as a pretext by the entertainment industry and other content providers to advance sweeping new regulations for enforcing copyright on the Internet.
“The agreement increasingly looks like an attempt by Hollywood and the content industries to perform an end-run around national legislatures and public international forums,” to advance aggressive changes in copyright enforcement, said Sherwin Sly, a staff attorney at Public Knowledge.
The agreement, called the Anti-Counterfeiting Trade Agreement (ACTA), was first disclosed in the U.S. in October 2007 by the office of the U.S. Trade Representative (USTR). At that time, the agreement was described as a “major” step in the fight against global piracy and counterfeiting of intellectual property.
According to the USTR, the trade agreement will focus on increasing international cooperation and information-sharing around intellectual property protection and result in the creation of stronger laws and standard enforcement procedures. The legal provisions being considered include those covering criminal enforcement of IP rights and the Internet distribution of IP. The countries involved in the treaty include the U.S., Canada, the 27-member states of the European Union, Japan, South Korea, Mexico, New Zealand and Switzerland.
A six-page summary of the trade agreement was released by the trade representative's office April 6.
What has alarmed a number of trade groups and civil rights advocates is that, beyond such brief summaries, little information has been released on the measures being contemplated. Almost all of the negotiations have been behind closed doors and the first details on the effort came via a leaked document posted by whistleblower site Wikileaks.org last year.
Since then, several groups have urged the federal government to divulge more information on the pact, but the requests so far have yielded little action. After the FOIA request last September, the USTR released about 160 pages of information on ACTA. However, another 1,300 additional pages on ACTA were withheld for reasons of national security, among other things, according to the EFF.
Nefeterius Akeli McPherson, senior media liaison for the USTR, today said the Obama administration is reviewing “how to move forward on ACTA.” She noted the April 6 release of the summary document as an example of the administration's desire to provide more information.
“The administration has promised to be more open and transparent with the public about how and why we work on trade agreements, and the release of the ACTA summary is a direct result of that commitment,” she said in an e-mail. “We believe that this summary provides the opportunity for the public to understand the parameters of this negotiation,” she said.
Pact is being 'rushed'
Last September, a coalition of more than 20 organizations, including the American Library Association, the Consumer Electronics Association, Intel Corp. and Yahoo Inc., submitted comments to the USTR on ACTA. The comments expressed concern that elements of the Digital Millennium Copyright Act (DMCA) could be included in ACTA without any of the safeguards that are available under the DMCA.
For example, while the language in the DMCA gives Internet service providers some latitude in deciding whether to terminate Internet access to online copyright infringers, ACTA could result in laws requiring ISPs to automatically disconnect infringers without any discretion, the note warned. While the DMCA leaves the decision to install traffic- and user-monitoring systems largely up to ISPs, ACTA could make such systems mandatory, they said.
In comments to the USTR last September, Google Inc. warned that the agreement being negotiated was “on a rushed, artificial schedule.” The letter urged U.S. negotiators to adopt a “transparent” and “consultative” approach in developing the pact. “The issues under consideration are actively disputed and are of tremendous economic importance to Internet intermediaries like Google,” the company noted.
One of the many troubling aspects of ACTA is that it would criminalize copyright infringement even in cases where there is no profit motive, said Eddan Katz, the EFF's international affairs director.
It would also enable the creation of three-strike and take-down laws around the world, where someone could be disconnected from the Internet for alleged copyright violations, Katz said. ACTA could also mandate that ISPs monitor customer traffic for copyright violations and create new liabilities for them, he said.
“I think they are establishing norms through this agreement that are too controversial to pass in Congress or a U.N. body like the WIPO [World Intellectual Property Organization],” Katz said. ACTA could lead to creation of a “new information customs regime” he warned.
What ACTA could end up doing is applying “concepts of customs regulations and enforcement to the Internet in ways that have not been done before,” Sly added.
Taking steps to protect intellectual property and prevent counterfeiting on the Internet are controversial measures that raise complicated questions, said David Sohn, senior policy counsel at the Center for Democracy and Technology, a Washington-based think tank.
Issues for ISPs — such as enforcing copyrights, policing user behavior and sharing information with copyright owners — are “tricky,” Sohn said. “With so little information about precisely what they want to do in this area, there is a real risk that the ACTA could end up including some provisions that are problematic,” he said. “We have been concerned, but it has been very difficult to know just how concerned we should be when you don't know the substance” of the trade pact, he said.
