Secret anti-counterfeiting talks hitting on copyright, Internet laws Calls are mounting for full disclosure of the secret multilateral negotiations. By Anca Gurzu Published March 17, 2010

View story Email Comments To the Editor

Since October 2007, Canada—along with almost a dozen other countries and the European Union—has been negotiating a secret and controversial deal: the Anti-Counterfeiting Trade Agreement. Not only has its secrecy sparked strong criticism around the world, but recently leaked documents also point to strict Internet copyright rules.

As the Canadian government is preparing to table its own copyright legislation in Parliament, experts and consumer advocates worry the international ACTA provisions may affect domestic law, and are calling for a full disclosure of the agreement texts.

"We don't like these secret negotiations at all," said Don Mercer, president of the Consumer Council of Canada. "The government of Canada has a duty to inform its citizens about this agreement, especially since there is a feeling on our part that it impacts citizens' fundamental rights and freedoms."

ACTA is being negotiated behind closed doors and is not part of any international organization such as the World Intellectual Property Organization or the World Trade Organization. Its scope is broad, including counterfeit goods and generic medicine, as well as copyright legislation targeting piracy. The other parties involved in the negotiations are the United States, the EU, Switzerland, Australia, New Zealand, South Korea, Jordan, Mexico, Morocco, Japan, Singapore and the United Arab Emirates.

The New Zealand Ministry of Economic Development describes the negotiations on its website as a "co-operative effort by the governments to respond to the increase in global trade of counterfeit goods and pirated copyright protected works."

Documents leaked to the public throughout the last few years, and most recently at the beginning of this month, appear to confirm a provision that would force Internet service providers to sift through their customers' data looking for copyright transgressions. This would be based on the "three-strikes-and-you're-out" policy, which would see people temporarily losing their Internet connection after being accused three times of illegally sharing copyright content.

"In our kind of society, when you surround something in secrecy, it gives rise to suspicion whether justified or not, and that's the problem with this," Mr. Mercer said.

The European Parliament has also recently challenged ACTA's lack of transparency. On March 10, it adopted by 663 votes to 13 a resolution demanding the European Commission—which has been negotiating ACTA on behalf of the EU—to make the text of the agreement open to the public. It threatened the Commission to bring the case in front of the European Court of Justice if the resolution is not respected.

Mr. Mercer pointed out that the European Parliament's resolution may only open access to the EU part of the negotiations. Since inter-governmental relations are sensitive, the EU may not want to jeopardize its partnership with other countries. "It's a bit of a risk," Mr. Mercer said. "But at least it would give some insight into what's going on."

ACTA critics say these secret talks negotiated via an international treaty allow governments to agree on intellectual property and copyright rules which would otherwise prove to be domestically unpopular.

"The reason these negotiations have been carried out for the last years in a coat of deep secrecy is because certain trade and lobby groups know they can't get these types of retrograde rules on copyright through any legitimate parliament," said NDP MP Charlie Angus, who has been vocal about opening the negotiations to public scrutiny. "I'm not surprised the EU responded like that, because—at the end of the day—this process has not produced social legitimacy. I think the dark ship ACTA has just hit an iceberg."

An official from Trade Minister Peter Van Loan's office said the government is ready to lift the veil of secrecy, but pointed out it cannot do so by itself.

"Canada supports the release of the Anti-Counterfeiting Trade Agreement text at the earliest possible opportunity," the official said in an email. "Canada cannot release the negotiating text until there is consensus to do so among the [ACTA] partners."

In a recent blog posting focused on the newly-leaked ACTA documents, Michael Geist, law professor at the University of Ottawa and an expert on Canadian copyright law, said the United States, South Korea and Singapore are "the remaining barriers to full transparency."

Mr. Van Loan also said that, before signing to any agreement, the government "would need to be fully satisfied that it reflects the best interests of Canadians and complies with Canadian law."

This has been the point of focus for many critics recently, as the government prepares to unveil new copyright legislation.

Mr. Geist said ACTA provisions may have a major impact on domestic rules.

"I think there are huge concerns that ACTA could undermine the choices we make on the domestics side," Mr. Geist said. "To have these major decisions done behind closed doors without any public input or access, I think is fundamentally wrong."

His thoughts were echoed by Mr. Angus. "We cannot have one wing of the government undermine Canadian practice through behind-the-doors trade agreements," Mr. Angus said, "while at the same time bringing forward new copyright legislation to Parliament."

Canada's current copyright law has been criticized as being too weak and not sufficiently sophisticated to reflect today's technological standards.

In this year's Throne Speech, the government said it will strengthen these laws "to encourage new ideas and protect the rights of Canadians whose research, development and artistic creativity contribute to Canada's prosperity." Government officials have held hearings across the country in the last few months to get the public's input on copyright issues.

"It's possible that when they table the legislation in the House, we will see a better picture," Mr. Mercer said. "What we do know, though, is that there is general unhappiness about [ACTA]."

Chris Gray, director of the Canadian Intellectual Property Council and Innovation Policy at the Canadian Chamber of Commerce, said his organization is in favour of ACTA. The Chamber has also been very active in lobbying for renewed copyright legislation in Canada.

"We need to assume the government knows what its doing and that it is doing good work," Mr. Gray said. "I wouldn't say there's a conspiracy theory, I think when there's tangible information to be known, the government will let us know."

But Mr. Geist said the European Parliament resolution has planted the seed of change for the next round of negotiations in New Zealand in April.

"I think...this issue will come to head during the next negotiations," he said. "I think it's pretty clear there is a strong momentum for transparency right now."

agurzu@embassymag.ca