USTR Gives Glimpse of ACTA Discussion Points

The document’s release “reflects the Obama administration’s commitment to transparency” and is being shared for review and comment, USTR said in a written statement. Center for Democracy & Technology attorney David Sohn said the release of the summary is “clearly a positive step,” but there’s not much substance within the document on which to actually comment. While it’s reasonable to say all negotiating documents can’t be shared early on, Sohn said, CDT’s fear is that the public won’t get a chance to look at proposed agreements until negotiations are so far along that the agreement is a take-it-or-leave-it affair.

Public Knowledge, which with the Electronic Frontier Foundation sued for access to documents, offered guarded praise for the release of the summary document. The summary “will help to some degree to clarify what is being discussed,” said President Gigi Sohn. “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.”

The summary release is a good first step but does nothing to quell fears about what might ultimately be included in ACTA, said EFF International Affairs Director Eddan Katz. Further, the summary fails to include information that would speak to the asymmetrical participation process so far and reveal who’s been able to see information or provide comments, he said. Nor does it completely outline the scope of discussions, such as whether patents might be included in negotiations, he said.

A comprehensive set of proposals “does not yet exist,” the document said. The section on intellectual property rights in the digital environment is the least fleshed out, offering only a brief paragraph that says there’s no draft proposal because the parties are “focused on gathering information on the different national legal regimes to develop a common understanding on how to deal best with these issues.” The paragraph says the section will deal with “possible roles and responsibilities of internet service providers.” Yet it doesn’t say how that role might be defined, said David Sohn.

The summary says the intended focus of the agreement is on counterfeiting that affects commercial interests, not “activities of ordinary citizens.” That’s good to see, David Sohn said, though “whether they're achieving that goal will depend a bit on details we don’t have yet.” The summary also says it’s discussing border measures, which could include a de minimis exception “that could permit travelers to bring in goods for personal use,” procedures by which right holders could ask border officials to hold suspected infringing goods, and a capacity for authorities to require “reasonable security or equivalent assurance sufficient to protect the defendant and to prevent abuse” when rights holders request action be taken. Negotiators are also considering “the scale of infringement necessary to qualify for criminal sanctions.” That last part still worries Katz, who said the seemingly simple language could belie a very important shift toward including not-for-profit infringement in criminal sanctions.

The Freedom of Information Act suit filed by EFF and Public Knowledge is on hold for the moment. The groups requested a stay until after the attorney general releases new FOIA guidelines. With those new guidelines now public, EFF expects to hear from USTR shortly about the agency’s re- evaluation of which documents it might make public. USTR previously released 159 pages and withheld more than 1,300, EFF said.

The Bush administration had hoped to complete ACTA negotiations by the end of 2008. A USTR spokeswoman said she didn’t have an answer as to whether there’s a new goal for completion. Negotiators postponed the last scheduled meeting, meant for Morocco in March, at the U.S.’s request, she said, so U.S. negotiators could consult with incoming USTR leadership. However, informal meetings and conference calls continue, she said. The summary document was put together during an informal side meeting during the WTO TRIPS Council meeting, she said, though no negotiations occurred. - - Leslie Cantu