Controversy over the secret global agreement on copyrights and counterfeiting being pushed by the United States erupted Monday after a leaked European Union document emerged suggesting the U.S. is pushing other nations to adopt a draconian global uniform policy. If established, the treaty could involve re-writing the law in many countries -- including the U.S. -- to include a "three strikes" policy similar to one recently passed in France, as well as possibly even jail time -- yes, jail time -- for Internet pirates.
President Barack Obama used an executive order last spring to keep the negotiations secret on "national security" grounds, but for the last several weeks, the Anti-Counterfeiting Trade Agreement, as it's called, has elicited growing cries of alarm.
Last month, potential members of the agreement, which include the world's rich nations -- and pointedly not China or other so-called developing nations -- concluded their sixth round of talks in South Korea. The next round is scheduled for January.
Europe 'Taken Aback by the American Position'
The leaked document is dated Oct. 29 and was published two weeks ago at linksaktiv.de, the website of a left-of-center German political party, says Michael Geist, a law professor who has been closely monitoring the issue at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law. "I don't even think they knew what they had," he says.
"This document provides evidence of an attempt by the United States to drive countries toward a three-strikes policy, and it would also dramatically change U.S. law," Geist told DailyFinance.
The United States Trade Representative, Ron Kirk, who reports directly to President Obama, is currently negotiating the agreement on behalf of the American public, which Geist believes is woefully uninformed about the treaty, thanks in large part to its secrecy.
"There is complete omission of any kind of balance here, because it is being strictly driven through the prism of rights-holders," Geist says, speaking about Hollywood and the major American entertainment companies.
"Even the Europeans were taken aback by the American position," Geist says.
In the text, the EU representatives expressed alarm over the apparent lack of balance in the U.S. position, which, again, has not been made public. "This is a very important deficit of the current text," the EU said in the document. "It is politically very important to emphasize balance and fairness, to mention culture and individual creators and not only industry."
Information Blackout Is in Force
Geist suggested there is a reasonable middle ground, but in light of the treaty's secrecy, it is difficult to know where the negotiating parameters lie.
"I think a lot of people would be okay with protecting content, but this is about access," Geist says, referring to the ability of Internet providers to cut off the service of suspected internet pirates in exchange for a "safe harbor" from prosecution. In order to monitor Internet traffic for potential infringement, the providers would use controversial surveillance techniques, including "deep packet inspection," through which they would would track users' web activity for violations.
Last week, Sens. Bernie Sanders of Vermont, an independent, and Democrat Sherrod Brown of Ohio wrote to the Obama administration expressing their concern over the treaty. "The public has a right to monitor and express informed views on proposals of such magnitude," the senators argued. "For that to happen, they need to have access to information, including relevant meeting details such as time, place, agenda and participants, reports or minutes of meetings, and key documents and negotiating texts distributed to all members of the negotiation."
But the U.S. and other nations have refused to release information about the talks, leading watchers of the agreement to rely on leaked documents -- and causing a whirlwind of rumor and speculation without mush basis in fact.
Chris Israel, the second Bush administration's coordinator for international intellectual property enforcement, told DailyFinance last week that it makes sense to conduct the talks in secret. "The process behind ACTA is not substantively different from similar trade agreements," said Israel, managing partner at PCT Government Relations, which represents a major media company involved in the talks that Israel declines to name.
"This is an agreement between leading economies on intellectual property that seeks to tie together various individual bilateral agreements in a more comprehensive way. It's just a good thing to do," Israel said. "But it's not something you can negotiate online in the blogosphere. This involves senior officials talking in confidence with each other, going over the text line by line."
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