Outside of the negotiators actually sitting at the table attempting to hammer out the accord, perhaps no one is following the Anti-Counterfeiting Trade Agreement (ACTA) more closely than University of Ottawa Law Professor Michael Geist.

Freelance author Richard Poynder recently corralled Geist for a wide ranging question and answer session on ACTA (PDF). A few choice exchanges from the interview are included below.

Geist provides his version of a quick overview of ACTA:

Actually in some ways ACTA is a bit of a misnomer, both with respect to calling it a trade agreement, and in suggesting that it deals with counterfeiting, or primarily with counterfeiting. There are undoubtedly counterfeiting provisions in it. But what has proved to be most controversial about ACTA, and arguably is the most important aspect of it, are the copyright-related provisions.

Geist’s main concerns with ACTA:

… you know one challenge that has arisen from an ACTA advocacy perspective is that its implications differ for pretty much every country. So yes, there are broadly uniform concerns that resonate everywhere around, say, the lack of transparency associated with the deal, some of the privacy implications and whether the three strikes issue should be mandatory or not. But then there are all sorts of other provisions in ACTA whose relevance depends on where you sit and what your domestic law currently looks like.

For instance, if you are in the United States there are fewer implications for you than if you were in any of the other countries taking part in the negotiations — because much of what is currently proposed in ACTA is based on a US model.

On the overall secrecy of the negotiations and the use of NDAs on those consulting the process:

The issue of national security is a separate matter. This came up when people asked to see the ACTA documents under the Freedom of Information or access to information statutes. These requests were denied in the US on the basis of national security. I mean, the notion that a copyright deal is somehow akin to nuclear secrets is just insane.

The secrecy associated with the deal appears to be an attempt to mute criticism. Ironically enough, however, it has had the opposite effect: we are seeing a steady stream of leaks, and this is stirring up far more resistance and public concern, and gaining far more attention, than might have been the case had they taken a more open and transparent approach.

Who wins if ACTA is eventually finalized?

… if they are able to conclude a treaty I think it is pretty obvious that it will be the US and the European Union — who are the major protagonists behind this — who will benefit.

Geist was asked if he thought that ACTA was being driven by “a few large businesses... primarily American”:

I think that is the prime driver behind this, but I don't think it is exclusively American companies — some of the large companies we see pushing for ACTA are based in Europe.

 

But as I said, it's not new: This linkage between the corporate perspective and US trade policy has been in place now since the mid 1990s, and if you take a look at the various trade agreements that the US has entered in since then you can track the whole process.

Current countries taking part in ACTA negotiations include the United States, the European Union, Canada, Australia, Japan, South Korea, Mexico, Morocco, New Zealand, Switzerland, Jordan, the United Arab Emirates and Singapore.

Following the latest round of Anti-Counterfeiting Trade Agreement (ACTA) talks in Mexico, internal documents leaked from the Dutch delegation have offered additional insight into the closed proceedings.

From the documents we’re given a look at what countries back the idea of making ACTA negotiations more transparent, a growing concern given growing criticism over the secret meetings. The document claims that Poland, the United Kingdom, Austria, The Netherlands, Finland, Ireland, Hungary, Estonia and Sweden are all in favor of transparency.

Germany has apparently not yet decided on its stance on transparency, and was joined by Belgium, Portugal and Denmark as being unconvinced “that complete transparency has to be achieved.” Denmark was further labeled as “not very flexible.”

Korea and Singapore flat out oppose the release of documents. The U.S. has remained silent regarding its stance on transparency, which apparently has unnerved other countries, such as France, who indicated “they were concerned about the position of the USA.”

Part of the movement for transparency seems to be to address “unwarranted criticism” from the public over fears that ACTA would contain measures for searching personal belongings or a feature a three-strikes type of anti-piracy law. The Dutch document expressed that those types of measures are not a part of ACTA.

Michael Geist notes that full transparency of the ACTA proceedings would require a unanimous agreements among all parties involved.

The document also reveals that the U.S. wrote the ACTA section on the enforcement of Intellectual Property pertaining to the Internet, to which Computerworld said, “This is something critics have feared for some time, since leaked versions indicate strong similarities between parts of the treaty and the U.S. law, the Digital Millennium Copyright Act.”

The 8th round of ACTA talks are scheduled for April 12-16 in New Zealand.

As the seventh round of Anti-Counterfeiting Trade Agreement (ACTA) talks continue in Guadalajara, Mexico, watchdog Michael Geist assists in pointing out some new information related to the controversial accord.

The Wire Report writes that Canada will not comply with ACTA unless it is “fully satisfied that it [the agreement] reflects the best interests of Canadians. This statement is attributed to Canadian International Trade Minister Peter Van Loan, who also said, “The Government has been transparent in this process and will continue consulting stakeholders.”

The article also contains a quote from Barry Sookman, a registered lobbyist for “the major recording companies,” who said that a three-strikes anti-piracy provision is “not on any proposal that anybody has seen.” He added, “It’s an attempt to scare the public against some of the provisions of the treaty.”

Additionally, in response to a lack of transparency surrounding ACTA talks, 20 UK MPs have signed a motion arguing that, if a handful of companies are able to influence ACTA decision making, politicians too should be offered the same courtesy:

…this House is deeply concerned by the secrecy surrounding international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA); notes that any agreement reached could affect the measures to protect copyright online currently being debated in the Digital Economy Bill.

MP Don Foster authored the motion, which was signed by pro-gamer MP Tom Watson, among others.

This week’s round of ACTA talks, according to the New Zealand Ministry of Foreign Affairs & Trade, will focus on Civil Enforcement, Border Measures, Enforcement Procedures in the Digital Environment and Transparency.

Geist has also been busy updating his ACTA Guide all week. Part One covers the talks to-date, Part Two focuses on ACTA documents, both official and leaked, Part Three discusses transparency and secrecy and Part Four centers on what ACTA might mean for different countries around the world.

|Image, purportedly the ACTA meeting room in Mexico, via TwitPic|

TechDirt has a fascinating look into the Anti-Counterfeiting Trade Agreement (ACTA) courtesy of a panel discussion on the topic hosted by Google this week as a build up to World’s Fair Use Day, which is today.

The panel featured lawyer Steve Metalitz, who serves as counsel to the International Intellectual Property Alliance (IIPA), James Love of Knowledge Ecology International (KEI), lawyer Jonathan Band and Ryan Clough, a legislative staffer for Rep. Zoe Lofgren (D-CA).

TechDirt notes that, after beginning with some standard talking points, things “got really interesting” when Love and Band offered their interpretations (i.e. read between the lines) of ACTA. In an ironic twist, while some of the participants had seen glimpses of actual ACTA documents—which they had to sign an NDA to view (and thus could not comment on publically)—they had to base their comments on leaked ACTA documents.

A few choice selections follow.

On the name of the agreement itself:

Furthermore, Band and Love took on the fact that it's being called the Anti-Counterfeiting Trade Agreement, since almost none of that is true. It's got little to do with counterfeiting and little to do with trade. As Love explained, it's like calling something "The Patriot Act." No politician wants to vote against something like that, no matter what the details are.

On the secrecy surrounding ACTA:

Love noted that the only reason to keep it secret is because the industry is "ashamed" of what's in the document, and won't come out and discuss it, knowing that the public would go nuts.

Love on what ACTA really is:

Love also pointed out that in what's been leaked in ACTA, what you basically have is all the stuff from previous agreements (WIPO and TRIPS) that the copyright industry liked -- but without the consumer protections that were built into both agreements.

Much, much more is in the full article at TechDirt.

In related news, Rep. Mike Doyle (D-PA) is the latest politician to call for more transparency in the ACTA negotiations.

The next round of ACTA negotiations—the seventh so far— is due to kick off in Guadalajara, Mexico the week of January 25.

The Director of Knowledge Ecology International (KEI) fortuitously found himself on the same airplane with United States Trade Representative (USTR) Ron Kirk (pictured left) and used the opportunity to grill Kirk a bit about the lack of transparency surrounding the Anti-Counterfeiting Trade Agreement.

Kirk told James Love that the ACTA text would be made public “when it is finished," which Love indicated would be too late. Kirk said he was aware that the public was clamoring to see the text, but called the issue of transparency “about as complicated as it can get,” and added that he didn’t want people “walking away from the table,” which he indicated would happen if the text was released.

In response to Love’s insistence that it was untrue that previous intellectual property rights negotiations were normally kept secret, Kirk responded that ACTA was “different” and the topic being discussed were “more complex.”

A pair of U.S. Senators recently called for ACTA text to be made public. The Electronic Freedom Foundation (EFF) has echoed that sentiment as well.

U.S. Senators Bernard Sanders (I-VT) and Sherrod Brown (D-OH) have penned a letter that implores the government to make public the proposals behind the ultra-secret Anti-Counterfeiting Trade Agreement (ACTA).

The letter (PDF here), dated November 23, was addressed to Ron Kirk, The U.S. Trade Representative. In the correspondence, the duo notes that they are “concerned” that President Obama’s previous stress of the importance of transparency, public participation and collaboration in government were not being applied to ACTA negotiations.

From the letter:

The ACTA involves dozens if not hundreds of substantive aspects of intellectual property law and its enforcement, including those that have nothing to do with counterfeiting… There are concerns about the impact of ACTA on privacy and civil rights of individuals, on the supply of products under the first sale doctrine, on the markets for legitimate generic medicines, and on consumers and innovation in general.

Sanders and Brown added that they were “surprised and unpersuaded” by claims that the information concerning the negotiations present a risk to the national security of the U.S. and that the public “has a right to monitor and express informed views on proposals of such magnitude.”

The Senators further stated that the secrecy of ACTA has “undermined” public confidence and attempts to tie this to a point made by Dan Glickman, CEO of the Motion Picture Association (MPAA). Unfortunately, in a letter supporting ACTA, Glickman wrote, “Outcries on the lack of transparency in the ACTA negotiations are a distraction. They distract from the substance and the ambition of ACTA which are to work with key trading partners to combat piracy and counterfeiting across the global marketplace."

Another letter supporting ACTA, sent on November 19, was signed by the likes of the American Federation of Television and Radio Artists (AFTRA), Directors Guild of America (DGA), National Music Publishers Association (NMPA), NBC Universal, News Corp., The Walt Disney Company, Time Warner, Inc., Universal Music Group, Viacom Inc. and Warner Music Group.

Update: A European Commission examination of ACTA’s Internet chapter has leaked and can be viewed online here (PDF). Michael Geist gives it a going over here. Worth noting: it appears the U.S. proposal contains a three-strikes policy, similar to one enacted in France and proposed for the UK.

A pair of Electronic Frontier Foundation (EFF) Directors penned an article which delves into some of the issues surrounding the Anti-Counterfeiting Trade Agreement (ACTA) negotiations.

The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy (PDF) was published in the Yale Journal of International Law. Authors Eddan Katz, EFF International Affairs Director, and Gwen Hinze, EFF International Policy Director, call the secret ACTA negotiations a threat “to undermine the balance of IP at the foundation of sustainable innovation and creativity.”

The EFF is concerned as well with the “unprecedented” secrecy around ACTA negotiations. The organization attempted to gain information using freedom of information laws, but only received 159 pages of information, while 1,362 were withheld due to national security concerns.

The U.S. is negotiating ACTA as a sole executive agreement, meaning that agreements “are concluded on the basis of the President’s independent constitutional authority alone.” The authors note that such agreements are not subjected to congressional vote, thus removing “the inter-branch accountability mechanisms essential to balanced policymaking.”

Circumventing the involvement of organizations such as World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), who typically account for “a range of interests” also removes “checks and balances” from ACTA negotiations.

Why should you and I be concerned about ACTA? The EFF has three responses for that question:

…though it was originally portrayed as an agreement to coordinate best practices on border enforcement of physical goods, ACTA will extend to regulation of global Internet traffic.

...implementation of ACTA may require amending U.S. law and upsetting developments in controversial areas of public policy.

…using trade agreements to set global norms for intellectual property enforcement risks distorting national information regulation.

The EFF authors offer the following proposals as ways to improve the transparency and accountability of ACTA:

• Reform trade advisory committees for more diverse representation;
• Strengthen congressional oversight and negotiating objectives;
• Institutionalize transparency guidelines for trade negotiations;
• Implement the State Department’s solicitation of public comments under the Circular 175 procedure

ACTA negotiations are scheduled to resume in January.

For nearly a year GamePolitics has been tracking ATCA, the Anti-Counterfeiting Trade Agreement (ACTA).

As we have reported, ACTA deals in large part with copyright issues and is being negotiated in secret by the U.S., Japan, Canada, the EU and other nations. Details of ACTA are largely a mystery to consumers despite the fact that dozens of corporate lobbyists have been clued in to parts of the treaty, including Stevan Mitchell, VP of IP Policy for game publishers trade group the Entertainment Software Association.

Sadly, consumer interests suffered a major blow last week as the Electronic Frontier Foundation and Public Knowledge dropped a federal lawsuit seeking to cast a little sunshine on the ACTA negotiations. The EFF explained that a recent decision by the Obama Administration to claim a national security exemption for the ACTA talks made the lawsuit unwinnable; federal judges have  little leeway to overrule such claims. The move by the Obama White House extends a similar policy put in place by the Bush Administration.

Public Knowledge Deputy Legal Director Sherwin Siy commented on the decision:

Even though we have reluctantly dropped this lawsuit, we will continue to press the U.S. Trade Representative and the Obama Administration on the ACTA issues. The issues are too far-reaching and too important to allow this important agreement to be negotiated behind closed doors.

The worry, of course, is that the United States will emerge from ACTA with a done deal that favors Big IP in the fashion of the consumer-unfriendly DMCA. Hal Halpin, president of the Entertainment Consumers Association, expressed concerns about ACTA earlier this year:

Because ECA supports the balance that must exist between the rights of copyright owners and the right of copyrighted material consumers, we do not think it wise to include any portions of the Digital Millennium Copyright Act (DMCA) in the Anti-Counterfeiting Trade Agreement (ACTA) currently being discussed...    

We are concerned that any DMCA language in ACTA may cause enormous, unforeseen negative implications in US law...

GP: As GamePolitics mentioned above, video game publishers lobbying group the ESA is privy to at least a portion of the secret ACTA negotiations while its industry's customers - video game consumers - are barred from knowing anything at all.

That makes us wonder - will the Video Game Voters Network, which is owned and operated by the ESA, commence a letter-writing campaign on behalf of its gamer-members demanding that the White House pull the curtain back on ACTA?

Somehow we doubt it.

FULL DISCLOSURE DEPT: The Entertainment Consumers Association is the parent company of GamePolitics.

Portions Via: /.

We've got DRM in our games, the RIAA continues to sue small-fry, individual file sharers, the consumer-unfriendly Digital Millenium Copyright Act is the law of the land, the IP industry is trying to push DMCA-like legislation in Canada, and the secret ACTA copyright negotiations are ongoing.

But the copyright lobby would like to be in your kid's school, too.

The Copyright Alliance, a lobbying group which includes game publishers trade association the Entertainment Software Association among its members, has just launched the Copyright Alliance Education Foundation, which it bills as a non-profit, charitable organization:

Its mission as of now is K-12 schools, and... we are already working with many schools across the country... The focus of our curricula is student empowerment; communicating how the U.S. Constitution gives each and every one of us rights and ownership over our creations.

Taking classroom time away from the 3R's is not a new idea for those in the IP protection business, however. As GamePolitics reported in 2007, the ESA's top enforcement exec, Ric Hirsch, told attendees at an anti-piracy conference:

In the 15- to 24-year-old (range), reaching that demographic with morality-based messages is an impossible proposition... which is why we have really focused our efforts on elementary school children. At those ages, children are open to receiving messages, guidelines, rules of the road, if you will, with respect to intellectual property.

On several recent occasions, GamePolitics has reported on ACTA, the international copyright treaty being negotiated in secret by various governments, including the United States.

Here in the U.S., IP rights holders - including the video game industry - have been granted access to information concerning ACTA negotiations. John Q. Public has been shut out, however.

But the Obama administration's promised commitment to open government appears to be pulling back the curtain on ACTA, at least a bit.

IDG reports that the Office of the U.S. Trade Representative has released a six-page summary of ACTA negotiations, which have been going on behind the scenes since 2006. Gigi Sohn, President of Consumer rights group Public Knowledge praised the info release:

The dissemination of the six-page summary will help to some degree to clarify what is being discussed. At the same time, however, this release can only be seen as a first step forward. It would have been helpful had the USTR elaborated more clearly the goals the United States wants to pursue in the treaty and what proposals our government has made, particularly in the area of intellectual property rights in a digital environment.

As GamePolitics has reported previously (see: Digital Rights Groups Go To Court Over Secret Anti-Piracy Treaty), secret negotiations are taking place between the United States, Japan, Canada, the European Union and others governments. Representatives of the various nations are attempting to broker a mysterious treaty known as the Anti-Counterfeiting Trade Agreement (ACTA).

Under discussion are intellectual property and copyright protection, important issues, to be sure. But while the Bush - and now, Obama - administrations have claimed that national security interests prevent consumer access to information about ACTA, Knowledge Ecology Notes reports that dozens of corporate lobbyists have been cleared for ACTA documents.

Included among these, according to the site, are Stevan Mitchell, VP of IP Policy for the Entertainment Software Association. The ESA is a trade association which represents U.S. video game publishers.

Also represented are the Motion Picture Association of America, the Recording Industry Association of America and the International Intellectual Property Alliance, of which the ESA is a member.

Hal Halpin, president of the Entertainment Consumers Association (ECA) has previously expressed concerns about ACTA:

Because ECA supports the balance that must exist between the rights of copyright owners and the right of copyrighted material consumers, we do not think it wise to include any portions of the Digital Millennium Copyright Act (DMCA) in the Anti-Counterfeiting Trade Agreement (ACTA) currently being discussed...    

We are concerned that any DMCA language in ACTA may cause enormous, unforeseen negative implications in US law.  That is why ECA, together with the Consumer Electronics Association, the US Internet Industry Association, Intel, Yahoo, Verizon and others, sent a memo asking the USTR to carefully consider that any discussions of “Internet issues” in ACTA be carefully circumscribed, consistent with U.S. law, and not include any portions of the DMCA.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

If comments by the head of the Copyright Alliance are any indication of things to come, it's going to be difficult, indeed, for video game consumers to have an intelligent and productive dialogue on IP issues with the video game industry. The ESA, which represents U.S. video game publishers, is a member of the copyright lobbying group.

A portion of a recent blog entry by Copyright Alliance executive director Patrick Ross seeks to marginalize those who would question or criticize the current state of IP law. Ross displays a discouraging mentality reminiscent of the Bush administration's efforts to paint Iraq War critics as soft on national defense.

With elected officials, consumer interest groups and gamers asking legitimate questions about issues like SecuROM DRM, the DMCA, ACTA, PRO-IP, and ownership of user-created content, we were disheartened to read these words from Ross:

Copyright truly is a consensus issue, with people and policymakers of all stripes recognizing its value. A few vocal blogs and a few sympathetic media outlets tend to create this notion of a war between creative industries and, well, I suppose consumers, but such a war doesn’t really exist.

The Copyright Alliance head implies that if one does not get behind IP protection as the content industry sees it, then one is either on the fringe, supportive of piracy, or both. In other words, If you're not with us, you're against us.

That's nonsense.

Honest people don't support piracy. But neither do honest people wish - or deserve - to live in an IP police state where tech-challenged elected officials accept IP industry campaign donations and proceed to pass laws that are heavily, if not completely, slanted toward big business.

Get a clue, Mr. Ross.

The governments of the United States, Canada, European Union, Japan and other countries are negotiating an anti-piracy agreement that could have a massive impact on digital media consumers.

And they're doing it in secret.

At issue is the Anti-Counterfeiting Trade Agreement (ACTA). As Ars Technica reports, public interest advocacy groups Electronic Frontier Foundation (EFF) and Public Knowledge have filed suit in federal court against the U.S. Trade Representative, a part of the executive branch. The suit is essentially a demand for information about ACTA and is based upon the Freedom of Information Act (FOIA).

Art Brodsky of Public Knowledge told Ars:

We believe they should conduct these negotiations with some transparency for what goes on, particularly when the talks are transparent to one side and not to the other (us). At a minimum, we should know how the US delegation is formulating its positions and have access to what they are doing.

Meanwhile, p2pnet reports criticism of ACTA by Canadian Internet Policy and Public Interest Clinic (CIPPIC) counsel David Fewer:

If Hollywood could order intellectual property laws for Christmas, what would they look like? This is pretty close.

Hal Halpin, president of the Entertainment Consumers Association (ECA) has also expressed concern about ACTA:

Because ECA supports the balance that must exist between the rights of copyright owners and the right of copyrighted material consumers, we do not think it wise to include any portions of the Digital Millennium Copyright Act (DMCA) in the Anti-Counterfeiting Trade Agreement (ACTA) currently being discussed by the US Trade Representative (USTR) and the Department of Commerce. 

 

We are concerned that any DMCA language in ACTA may cause enormous, unforeseen negative implications in US law.  That is why ECA, together with the Consumer Electronics Association, the US Internet Industry Association, Intel, Yahoo, Verizon and others, sent a memo asking the USTR to carefully consider that any discussions of “Internet issues” in ACTA be carefully circumscribed, consistent with U.S. law, and not include any portions of the DMCA.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.