This week in Europe, passage of the controversial Anti-Counterfeiting Trade Agreement (ACTA) came closer to the rocks, with its own rapporteur telling the European Parliament not to pass the treaty.   

The new rapporteur to the EU on ACTA, David Martin, has only recently replaced Kader Arif, who resigned the position in protest against ACTA in January this year. In announcing his decision, Arif condemned the process of ACTA negotiations as a “masquerade”, conducted in secret, without public access to the negotiating texts, and excluding meaningful civil society participation.

His condemnation of ACTA added another voice to the fierce, frustrated and widespread protest of tens of thousands of citizens across EU member states, and more than 2.5 million people worldwide.

In Australia, on the other hand, the Joint Standing Committee on Treaties’ public hearings into Australia’s ratification of the agreement in March passed with barely a Twitter whisper. ACTA has never become headline news in Australia: there’s been no massive exodus to the streets in protest, there have been no Guy Fawkes masks donned by members of the Australian Federal Parliament.

Perhaps it’s because the criticisms being levelled against ACTA in Europe and beyond are completely misinformed, or at the very least, exaggerated, and unlike our reactionary European counterparts, Australians know how to cut through the cr…hyperbole. It’s certainly true that during the first two years of negotiations, until an official draft text was released in April 2010, a justifiable level of paranoia surrounded ACTA and its veiled contents.

But have those opposing ACTA, and the way it was negotiated, just gotten it wrong? Has the concern and hesitation of the EU Parliament, the condemnation of its rapporteurs, and the anger and fear of its citizens, simply been woefully misdirected?

Appearing before the Joint Standing Committee on Treaties in March, the Department of Foreign Affairs & Trade argued vigorously against various ‘misinformation’ and ‘misunderstandings’ that characterised the ACTA debate. DFAT maintained that ACTA did not affect civil liberties, did not affect internet freedoms, would not affect the balance inherent in IP and would not result in changes to Australian law. All of these statements have been open to debate (peruse the JSCOT submissions and transcript from the public hearing Friday 23 March), and won’t be covered in this post.

I want to talk about transparency in ACTA, the issue that fuelled the wave of popular global opposition to the agreement.

While former EU rapporteur Kadir Arif was scathing in his criticisms of the process of negotiation of ACTA, before JSCOT in Australia DFAT strongly defended allegations that there had been a lack of transparency and the exclusion of public participation in the process. So what is Arif talking about?

In Australia, between the release of a discussion paper in 2008, and the official release of draft negotiating text in April 2010, stakeholders, members of the public and members of Parliament had no access to draft text (in theory – in the US, it seems that some vested corporate interests, including the copyright industries, and pharmaceuticals companies, had access to the texts as “cleared advisers” to the USTR).

That’s over two years without any disclosure of documents that could shed light on the substance of the agreement.

And while some negotiators maintained that secrecy was appropriate and normal in trade negotiations, ACTA is a trade agreement in name only. ACTA, as described by all of the negotiating parties, is an agreement that aims to establish new international standards for intellectual property enforcement. And setting international intellectual property standards is ordinarily the role of the World Intellectual Property Organisation and the World Trade Organisation.

A brief segue:

At the same time that Australia was negotiating ACTA, Australian representatives were also attending WIPO discussions on an international treaty that would permit people with visual impairments to copy books and other copyright works into formats that they could read. Currently, less than 5% of the world's books are available in an accessible format for the visually impaired.

Unlike ACTA, the WIPO discussions on an instrument for the visually impaired involve all Member States, both developing, in transition and developed countries. And unlike ACTA, the draft treaty texts and the input of Member States from the discussions are made available online to the general public.

You can follow the debate over an agreed definition of ‘visual impairment’, or see Australia’s input into the wording of a provision that would allow the cross-border transfer of accessible format works. Civil society groups are invited to observe the negotiations, follow discussions and communicate their concerns with Member States.

So why didn’t the countries negotiating ACTA just go through WIPO?

The problem is, negotiating international IP instruments with the input of States in wildly different stages of economic development, and with the input of civil society, takes a long time, and the end result may not be satisfying to all parties.

To put this in perspective:

Australia has been engaged in discussions on how best to provide access to copyright works for blind people since the late 1980’s. ACTA was concluded between a select group of participating countries in under three years. Were ACTA negotiated in a more open forum, like the WTO or WIPO, it would have faced considerable opposition from leading emerging economies like Brazil, India and China, and may never have achieved the high, as in restrictive, standard for IP enforcement it was after.

Through ACTA, a particular, very high standard for IP enforcement (arguably not appropriate for developing countries, let alone net-IP importing countries like Australia) became the new precedent for future IP chapters of bilateral and regional trade agreements… 

…like the IP chapter of the Trans-Pacific Partnership Agreement (TPP).

Australia’s involvement in negotiation of the Trans-Pacific Partnership Agreement, a comprehensive agreement covering all aspects of trade, including IP, has passed even further under the media radar in Australia and, without the EU’s participation, globally, than ACTA.

Like ACTA, the IP chapter of the TPP aims to set “best practice” standards for IP enforcement and protection. In fact, the draft copyright provisions of the TPP indicate it goes even further than ACTA, restricting lawful uses of copyright works, expanding criminal liability for infringement into accepted consumer activities, and proposing a 95 year term duration for sound and film recordings, among other things.

Following the path forged by ACTA, the TPP has been negotiated in secret, without access to any negotiating documents and with limited opportunities for stakeholder participation. Civil society groups have described being kicked out of hotels and universities where they hosting lunches and seminars for the IP negotiators. There’s a list of cleared advisers to the USTR for the TPP that include representatives from the Recording Industry Association of America, the Coalition of Intellectual Property Rights and the Entertainment Software Association.

Now, approaching the twelfth round of negotiations in Dallas, the US seem to have done away with official stakeholder participation altogether. At the Dallas round, stakeholders are to register tables in another room outside of the negotiations, where negotiators may stop in to listen at their leisure. None of this will make it easy for DFAT to maintain before some future JSCOT, that the TPP had no problems with transparency or public participation.

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Apparently the US has said that the Trans-Pacific Partnership Agreement could be finalised as soon as July this year.

Come July, WIPO too will  be gearing up again for another round of discussions on copyright exceptions for the visually impaired. But a binding instrument that would enable the world’s blind people to access books could still be a year away, at least.

The problem with choosing to negotiate standards for IP enforcement and protection behind closed doors through agreements like ACTA and the TPP, while leaving exceptions and limitations to IP rights in the more cumbersome WIPO forum, is that it implies that the protection of IP takes greater precedence over exceptions that would fulfil the public interest in access to education, information, and culture.

There’s no fast-track, closed door agreement being negotiated with net IP exporters that would enable the world’s blind people to access more than 5% of books, or promote educational copying exceptions or exceptions for libraries in the digital environment. The one leaked draft of the IP chapter of the TPP doesn’t include any flexible exceptions or other positive IP provisions. In reality, that’s because net IP-exporters like the US, and the EU, are generally more concerned with protecting their IP than encouraging flexible exceptions for other countries.

And it’s this point that makes the emergence of ACTA and the TPP as vehicles for international IP policy making so alarming. Besides the lack of transparency and exclusion of civil society in comparison with WIPO and the WTO, ACTA and the TPP throw their weight behind one side of the copyright debate. The protection of IP for the benefit of a limited group of right holders is fast tracked over broader societal concerns with equal access to education, the ability to innovate, and to information.