Four weeks ago, I began a walk through the proposed Anti-Counterfeiting Trade Agreement, a plurilateral trade agreement currently in negotiations that has sparked a great deal of Fear, Uncertainty, and Doubt (FUD) online. Using the official draft text of the agreement released last April, I laid out each provision of the ACTA and compared it to provisions in US law that corresponded. You can see the previous entries in this series here:
- ACTA: Thought for FUD, Part 1
- ACTA: Thought for FUD, Part 2
- ACTA: Thought for FUD, Part 3
- ACTA: Thought for FUD, Part 4
The goal of this exercise was two-fold. First, I have not seen a similar examination of each provision of the ACTA. I have seen concerns that it will result in changes to existing US law. I thought a side-by-side comparison of provisions from both would be helpful in this regard.
More importantly, many of the more wild concerns seem to stem from those who simply did not understand the scope of the agreement nor understood the scope of existing copyright law. If you don’t know what is in the ACTA, it’s easy to buy into the FUD surrounding it. Even if you’ve read through the proposed provisions (either in the officially released draft text that I worked off of or one of the many leaked texts), it’s still easy to accept the scary stories being told if you can’t put it into the context of existing law. In other words, it’s easier to buy into apocalyptic tales that the ACTA will implement radical changes to the law if you aren’t aware that its provisions mirror already existing law.
What general observations can we make after looking at this side-by-side comparison? First, as far as copyright law goes, nothing in the ACTA jumps out that would require changes to US law. Second, the language of the treaty comports with Ambassador Ron Kirk’s responses in his letter to Senator Ron Wyden about concerns with the flexibility of the treaty and its effect on fundamental rights and civil liberties. Few, if any, of the provisions “require” a Party to enforce copyrights in a set way, while recognition of due process and privacy are reiterated in many provisions.
This comparison of proposed ACTA provisions with corresponding US copyright law is only that. It does not show what, if any, differences exist between the ACTA and existing patent or trademark law, which will likely be covered under the agreement. It does not show how the laws of any country besides the US compare to the ACTA provisions. It also does not make any judgment about existing US law.
I also at no point implied that “ACTA will change US law” is the only criticism aimed at the proposed agreement. Certainly, as with any proposal of any sort – whether a trade agreement, legislation, policy directive, etc. – criticisms will exist. Indeed, one criticism is that it is too much like US law; the ACTA is an attempt by the US to “export” its framework of copyright law to other nations. Critics also label those negotiating the treaty as engaged in “policy laundering.” There are concerns that the treaty will “lock in” certain aspects of copyright law that should remain flexible to respond to rapidly changing technologies. You can find plenty of sites exploring these criticisms, so I’ll refrain from saying anything more about them, but I did want to take a quick look at one of the most common criticisms about the ACTA: the lack of transparency in the negotiating process.
A bit about “transparency.” One of the biggest complaints about the agreement have concerned a supposed lack of transparency over the negotiating process. The proposed treaty is nearly always characterized as “secret.” It’s difficult seeing how this charge of “secrecy” holds up; the United States Trade Representative has an entire page devoted to the ACTA, with various documents available, including the draft text of the treaty that I have been working off of during this series of articles. As several commentators have pointed out, the USTR has made other information available to those outside the negotiating process – subject to a rather standard nondisclosure agreement – including Public Knowledge, Google, and the Center for Democracy and Technology.
Placing aside the hyperbolic criticism of the treaty’s “secrecy,” the question remains whether the negotiating process is sufficiently “transparent.” We accept that transparency plays an important role in democratic institutions. Noted philosopher and “patriarch of utilitarianism” Jeremy Bentham wrote, “Publicity should help constrain the members of the assembly to perform their duty; secure the confidence of the people; enable the assembly and the governors to know the wishes of the governed; enable the electors to act from knowledge; and generate the amusement that by itself increases the happiness of the people.”1 We want to know the language of bills introduced in Congress, how our representatives have voted in the past, how our tax dollars are being spent; knowing these things helps us on election day and keeps government officials in line.
Treaty negotiations, however, are a different kind of creature then the types of political transactions Bentham is referring to and what we generally want information about. Indeed, it has long been customary for trade negotiators to refrain from disclosing every proposal or early draft to the public, and the ACTA negotiators have simply acted in the same fashion. When you’re negotiating complex issues among a diverse group of parties, confidentiality allows a more free exchange of ideas and facilitates negotiation and compromise. The Founding Fathers recognized these benefits when they chose to draft the Constitution in private.
The “wrong” kind of transparency during treaty negotiations can be more detrimental than beneficial. Insisting on keeping the doors open at every stage of the process accomplishes little more than crippling the process. Those who are opposed to the entire process insist on this kind of transparency as a tactic – they want the negotiation process to fail. As stated above, the transparency of the ACTA negotiations is on par with other agreements; the draft text and other documents are publicly available. I doubt any level of transparency will satisfy the “secret treaty” critics, and I doubt any will say when negotiations are finished, “Well, I agree with the goals and provisions of the treaty, I just wish you would have kept us more in the loop.”
- “Of Publicity,” Public Culture (1791/1994). [↩]