The case for transparency

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Summary

  • ACTA is being negotiated in secret.

  • This is not the norm for similar international agreements.

  • There is concern that the lack of transparency in the ACTA negotiations may lead to New Zealand being forced to introduce or change laws without adequate public and industry consultation, or that contradict the outcome of consultation that has already occured.

  • A call is made therefore to make the text of the ACTA negotiations available to the New Zealand public.

Discussion

The Anti-Counterfeiting Trade Agreement is being negotiated by government officials from participating countries (US, Canada, Japan, the European Union, South Korea, Mexico, Switzerland, Australia and New Zealand). It is a 'plurilateral' treaty (i.e. including only a small number of countries), being negotiated outside of the established 'multilateral' fora for trade and 'intellectual property' issues such as the World Trade Organisation (WTO) and the World Intellectual Property Organisation (WIPO).

The content of the agreement is secret. It has only been seen by a small number of politicians and government officials, and in the US was shown to 42 individuals under non-disclosure agreements. The US has denied Freedom of Information Requests to provide the text to the public citing national security issues. The governments involved in ACTA a joint statement on 6 November 2009 stating:

"it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation."

Michael Geist, a law professor at the University of Ottawa, Canada commented that the lack of transparency around ACTA is, however, not at all standard:

“It is important to emphatically state that this is simply not the case for many multilateral agreements and the activities of international organizations that typically serve as the forum for global agreement discussions. U.S. NGO groups have made a strong case for how ACTA's lack of transparency is out-of-step with many other global norm setting exercises. With regard to international fora, they note that the WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law, and an assortment of other conventions have all been far more open than ACTA. For example, it notes that the WIPO Internet treaties, which offer the closest substantive parallel to the ACTA Internet provisions, were by comparison very transparent:
The two WIPO Internet Treaties (WCT and WPPT) were negotiated in a completely open meeting at the Geneva Convention Center. The public was allowed to attend without accreditation. The draft texts for the WCT and the WPPT were public, and the U.S. government requested comments on the draft texts, which were available, among other places, from the U.S. Copyright Office.
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A number of commentators and politicians have expressed concern that the lack of transparency in the ACTA negotiations may lead to countries being forced to change laws that have already been developed through thorough and open public consultation.

In New Zealand UnitedFuture leader Peter Dunne called for the Government to release details on ACTA, stating:

“There is a lot of conjecture about the contents of ACTA and what it will mean for the protection and enforcement of intellectual property and copyright law here in New Zealand,”

“The veil of secrecy surrounding the contents of the ACTA agreement is causing a lot of concern not only here but also among the other nations involved.”

“A simple disclosure of the terms and text of ACTA negotiations would allay any misplaced anxiety while also giving New Zealanders the opportunity to voice concerns they may have.”

Labour MP and ICT spokesperson Clare Curran has also called for the government to “reveal the text of recent secret discussions in South Korea on the Anti-Counterfeiting Trade Agreement (ACTA)”, saying:

“There’s a lot of agitation and unease building around this locally and overseas, in light of the unknown outcome of the Government’s re-write of controversial Section 92A of the Copyright Act which is overdue for release. People have been speculating that the delay is linked to the ACTA discussions. The Government has said it isn’t.

Labour is keen for public discussion and input on ACTA, and for the government to acknowledge this and release the content of the negotiations to date.”

"The NZ Herald reported in November that while the US government claims ACTA is about counterfeiting rather than major changes to copyright law, and shouldn’t be subject to public scrutiny, leaked versions of ACTA discussion papers seem to indicate that copyright lobby organisations may have in fact turned treaty negotiations to suit their own agenda.”

In the US Senators Bernie Sanders (I-VI) and Sherrod Brown (D-OH) wrote to the US Trade Representative, asking that the ACTA text be made public, stating:

“We are surprised and unpersuaded by assertions that disclosures of basic information about the negotiation would present a risk to the national security of the United States, particularly as regards documents that are shared with all countries in the negotiations, and with dozens of representatives of large corporations. We are concerned that the secrecy of such information reflects a desire to avoid potential criticism of substantive provisions in ACTA by the public, the group who will be most affected by the agreement.”

“We firmly believe that the public has a right to know the contents of the proposals being considered under ACTA, just as they have the right to read the text of bills pending before Congress.”

The Swedish Minister of Communications and the EU have also expressed concerns about the secrecy surrounding ACTA.

The fear is that once ACTA is finalised, countries who have entered into the agreement will be forced to change their laws to 'harmonise' with the provisions in ACTA. This will mean imposing new laws, penalties and surveillance systems without any public input or consultation. In some cases the required new laws may be in direct contradiction to those already developed through open democratic processes.

This is commonly described as 'policy laundering', the subversion of democratic process through “push[ing] for certain regulatory standards in international bodies and then bring[ing] those regulations home under the requirement of harmonization and the guise of multilateralism2

The Ministry for Economic Development have acknowledged that ACTA is quite closely related to the Trans Pacific Partnership trade agreement and a free trade agreement with the US. In the Commerce Select Committee on 26 November 2009, in response to a question from MP Clare Curran, an MED official stated, in reference to the relationship between ACTA and an FTA with the US:

"Yes, in the sense that the United States is in both, and they have the same policy positions in both settings so there is no point in hiding the fact that there is a close relationship in the sense that they will be looking for a consistent environment to be achieved through both mechanisms, as will we."

Transparency and public consultation are important elements in establishing law and policy in modern democracies. The secrecy surrounding ACTA is not normal for an agreement of its type. It risks subverting democratic processes and undermining the New Zealand public's trust in its government. For these reason a case is put forward for the text of the ACTA negotiations to be made public.

References:

1 - ACTA is secret. How transparent are other other global norm setting exercises?
http://www.keionline.org/misc-docs/4/attachment1_transparency_ustr.pdf

2 Hosein, Ian, 2004, "International Relations Theories and the Regulation of International Dataflows: Policy Laundering and other International Policy Dynamics"