16th dec, 2009

Is the Anti-Counterfeiting Trade Agreement secret?

I have been following the Anti-Counterfeiting Trade Agreement (ACTA) for some time through the news and IP-blogs. A recent post in the EFF site got me thinking and I began researching the matter a bit more closely. The ACTA process is presented as secret and avoiding the scrutiny of the more critical part of the public. 


I am not the only one thinking about this apparently. A few days ago Hanne Agersnap from the Danish party SF has put 2 questions to the Danish Minister of Business and Economy in this matter. The questions circle around the Danish position in this matter – particularly the openness issue. Actually Hanne could check out the DKPTO blog where the ACTA has been the subject of a number of posts. It is not clear however how well informed the DKPTO is in this matter – ie. Have they seen the texts circulating and are what is the Danish position? 


The European Commission has done a Q&A document on the ACTA. In there it is stated that the ACTA is not secret and there is no actual ACTA text yet. In the document there is a given a reason for avoiding the WIPO and WTO as venues for negotiation for the agreement. The reason is that they are too big and move too slowly and (my interpretation) political disagreements dilute the legal texts. 


The ACTA must be described as semi transparent as there is not much focus on the treaty. This is mainly due to the fact that there is not any pressure (in Denmark) from organizations to get involved in this matter. 



You are not making any sense.

How can you call ACTA “semi transparent” when the negotiations are in secret, and practically all the working papers are secret?

Why do you contradict the minister of commerce who states that the negotiations are secret?


How can you say that there is no interest when computerworld.dk and comon.dk and newz.dk regularly writes about the ACTA negotiations and the secrecy of them?

Eg. http://www.computerworld.dk/art/54247

Why do you suggest Hanne Agersnap reads the DKPTO blog when the only post with any pretense of informing about ACTA just links the the EC’s pathetic piece of non-information?

What organizations in Denmark should get involved in the matter? Are questions from elected politicians not good enough?

I call the process semi transparent because there is no secrecy about the fact that there are negotiations. Normally the negotiations are secret as they should be (in my opinion). The semi secret part that I´m not that thrilled about is the fact that the Danish mandate for the negotiations was given in 2007. What would be interesting would be to know what the Danish position is today.

I do not agree that the DKPTO is a pretense. If you look at the posts there is especially one encouraging interested parties to participate in the process. If your attitude is that the authorities are pathetic nothing will be done.
I am surprised that organisations like all the IP organisations have not put their opinion forward. I am surprised that organisations like forbrugerrådet, IT-politisk forening or other organisations typically combatting expansion of IP rights are not active in the debate.

To me the negotiations are secret. I don’t know any specifics on what the EU is negotiating on my behalf. And they are secret in a particularly disgusting way, namely that working papers and drafts are secret for me and other regular voters and the public in general. But not secret for corporate lobbyists.


I said “only post with any pretense of informing about ACTA just links the the EC’s pathetic piece of non-information”. And i did not say the “authorities” were pathetic. I said the quality of information DG TRADE (in this case) gave to the public was pathetic. Do you disagree?

And it is pretty easy for DG TRADE to suggest that people participate, if people have no specific information to base their input on.

So my attitude is very clear – the EU should release detailed position papers. Have public consultations on how to proceed, and give clear, detailed feedback on their progress negotiating based on the public consultations. See – not so difficult? The EC should involve people/society/voters instead servicing corporate lobbyists in secret.

And how exactly do you intend that danish organisations should participater more in a debate where practically all the information is secret to the public and only available to corporate lobbyists?

Working papers and drafts are always secret as is the negotiation protocols. They have a tendency to lock the negotiations preventing taking different positions. The list provided of the advisors to the US is a general list and its not sure that they will be consulted.

The EU position in this matter is probably dictated by the negotion agreement between the countries. And since there is no formal text on the table yet it cant be shared (see the COP 15 for an example of how hard it can be to table a text). I agree that a EU process should be initiated on this matter to consult the public opinion.
If I was an organisation I would do meetings with politicians, ask questions (to politicians), make my opinion known, give interviews, make my opinion known to ther organisations. In short: make some noise to make the politicians notice that there is something that could cause them trouble. The reason the CII patent debate was so successful in relation to discussing different positions was that the politicians saw that they could get in trouble if they ignored the matter.

I think we agree. It is unfortunate (and stupid) of EU representatives to start negotiating in secret without a clear mandate.

Starting without a clear mandate would have been much less unfortunate if the negotiations were not secret, and if it was not so extremely believable that much information is shared with corporate lobbyists but withheld from the public.

So can we agree that both of Hanne Agersnaps questions are sensible and pertinent.

1) Since negotiations have started without a clear mandate, the current state of negotiations should be opened up, and a process for seeking a clear mandate should be started.

2) As a first step of the mandate process would be clearly delineating which positions are acceptable and which are not. Eg. it is not acceptable with an ACTA agreement which requires internet cutting for private citizens.


Ja det første svar er langt, men det er rigtigt…det siger ikke sÃ¥ meget om hvad der vil kæmpes for fra dansk side

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