Follow us
The Mystery of the Anti-Counterfeiting Trade Agreement
Posted by
John E Grant
on November 30, 2009
Digg
Reddit
Smart businesspeople know that outcomes are often uncertain. They encounter a constantly changing landscape of opportunity and risk. At Imua Legal Advisors, we work with our clients to maximize their opportunities not by eliminating risk altogether (truly an impossible task), but by helping them to get rid of as much unnecessary risk as possible.
That's why we've been following what little news emerges about the Anti-Counterfeiting Trade Agreement (ACTA), a treaty being negotiated in secret by Australia, Canada, the European Union, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States. Although ACTA's name suggests a fairly banal and uncontroversial treaty (who doesn't want to reduce counterfeiting?), the information that has leaked out, if accurate, points toward much broader agreement that will bring far-reaching changes to copyright law.
A big part of our job as legal advisors is to help prepare our clients for upcoming changes to the law. Unfortunately, it's difficult to offer analysis or insight about a treaty with secret contents. That's why—putting aside ACTA's civil liberties, separation of powers, and privacy issues—we're most concerned about the lack of transparency surrounding negotiation of the treaty itself. To this end, what follows is the text of a letter our attorney Eric Meltzer sent to Senator Murray, D-WA, last week.
We encourage anyone concerned with copyright law or transparency and open government to contact their elected officials.
Honorable Senator Murray:
The sixth round of negotiations for the Anti-Counterfeiting Trade Agreement (“ACTA”) was held on November 4 – 6, 2009, in Seoul, South Korea. According to a press release issued by the Swedish Presidency of the European Union at the round’s conclusion, delegates committed to completing this Agreement as soon as possible in 2010, likely during the seventh round of negotiations to be held in Mexico in January.
This is problematic.
Although ACTA’s scope is vast, no one in Washington State appears to have a seat at the table. In fact, we can’t even peek in the window because we’re not even allowed to see the house.
This is not how our democracy is supposed to work. On President Obama’s first day in office, he called for “making the Federal government more transparent, participatory, and collaborative.” That these are important goals is beyond dispute. As a Seattle-based intellectual property attorney, I was encouraged by the President’s statement and looked forward to a more transparent, participatory, and collaborative discussion regarding ACTA.
It never happened. In fact, the Executive Branch has declared the text of the treaty as national security information pursuant to Executive Order 12958. Leaving aside how ACTA’s relationship to our national defense rests upon weak and unsubstantial foundations, international intellectual property law reform is too important to Washington workers to be done in the dark. This approach is more evocative of the Molotov-Ribbentrop Pact than the world’s most successful international agreement, the Montreal Protocol on Substances That Deplete the Ozone Layer. Which is the better model to emulate?
I hold no position as to what’s contained in treaty. At Imua Legal Advisors, we support Washington’s great innovation economy. This means providing counsel for rights holders as well as those suspected of infringement. It’s a real challenge for us, though, to collaborate with our clients to develop legal strategies to meet business priorities without an inkling of how their legal rights are changing or what new risks are emerging. All we know is that they are.
As Justice Lewis Brandeis wrote, "[s]unlight is the best disinfectant", though perhaps Kurt Cobain said it better: “just because you’re paranoid don’t mean they’re not after you.” Really, you said it best a few years ago in regard to what you saw as Justice John Roberts’s lack of disclosure during his confirmation hearing: “[t]his is a process that the American public deserves to be involved in.”
Senator Murray, ACTA negotiations are a process that the American public deserves to be involved in. Please help us get involved.Sincerely,
Eric Meltzer, Of Counsel, Imua Legal Advisors.
Note that the Molotov-Ribbentrop Pact referenced concerns the non-aggression pact signed between the USSR and Germany that contained notorious secret protocols dividing much of Eastern Europe between the two powers. The Montreal Protocol on Substances that Deplete the Ozone Layer is pretty self-explanatory.