[A2k] Huffpo: White House Blocks Disclosure of Secret intellectual property trade text

James Love james.love at keionline.org
Fri Sep 3 09:13:01 PDT 2010

Shorted URL: http://goo.gl/i8tG

White House Blocks Disclosure of Secret intellectual property trade text
Huffington Post
James Love, September 2, 2010

The Obama Administration has again blocked the public release of the
text of an important intellectual property enforcement agreement.  The
White House has made the completion of the agreement a high priority,
which it will describe as something to protect U.S. jobs  -- and hopes
to complete the global pack in time to influence the November 2010
Congressional elections. 

The "Anti-Counterfeiting Trade Agreement," known as ACTA, has been
shrouded in controversy since its inception in the Bush Administration,
because of the secrecy surrounding the negotiations, and the suspected
anti-consumer, anti-civil rights, and anti-innovation measures that were
thought to be included.  

Some of us thought the Obama Administration would straighten things out,
but almost immediately after taking office the White House declared the
ACTA text to be a matter of national security[1] - withholding the text
and even the names of the negotiators from Freedom of Information Act
(FOIA) requests, while sharing the negotiating text secretly with
hundreds of industry lobbyists.  The White House also embraced the hard
line positions being advocated by various entertainment industry
executives, such as Ari Emanuel of Hollywood's William Morris Endeavor
Entertainment agency, or Rick Cotten of NBC Universal, and the army of
lobbyists working for large publishers.  

The agreement is being negotiated between the United States, the 27
member countries of the European Union, Switzerland, Canada, Australia,
New Zealand, Japan, Korea, Singapore, Mexico and Morocco.  All of the
other countries in the negotiation are now willing to have the
negotiating text made public, recognizing that this transparency would: 

(1) enhance the legitimacy of the negotiation, and (2) allow a broader
community of experts to analyze the consequences of the proposed text. 

On March 10, 2010, the European Parliament criticized the legitimacy and
the substance of  the ACTA negotiations, and voted 633 to 13 to force
the disclosure of the negotiating text.  On March 11, 2010, President
Obama came to the defense of ACTA[2] in a speech at the Import-Export

The European Parliament vote forced a one time release of the ACTA
negotiating text on April 16, 2010,.  Since then, the United States has
been isolated as the only country to block the additional releases of
the text.


On August 16, 2010, USTR head Ron Kirk met with ACTA negotators in
Washington, DC.  That week the US government was again the sole country
to block the disclosure of the ACTA negotiating text.  Photo from USTR
web site.

At this point, the White House is desperate to get an agreement that it
can advertise as a jobs promoting measure, and is in the process of
compromising on a number of important issues, as the European Union
tries to capitalizes on what it perceives is panic in the White House
over the election. 

What is ACTA about?  In the beginning, ACTA was proposed as a sweeping
agreement touching on the criminal and civil enforcement of patents,
copyrights, trademarks, trade secrets, industrial designs, computer chip
designs, geographic indicators associated with wine, spirits and food
products,  and pharmaceutical test data, including a host of new global
norms involving the surveillance of uses of a wide range of physical and
digital goods in order to eliminate alleged infringements  -- described
by some as a "Patriot Act" for IPR enforcement.   Drawing from the
lessons of the real Patriot Act, it should not take a genius to
recognize that enforcement measures can be problematic.  The mere fact
that IPR infringements constitute a serious issue does not mean that all
measures to deal with alleged infringement are good ideas.  

In the earlier versions of the ACTA text that have been leaked, it is
clear that the U.S. negotiators have screwed up in several areas -- by
backing new global norms on injunctions and damages that run counter to
U.S. legal traditions, and which would make it next to impossible to
deal constructively with orphan works problems for copyrighted works, or
facilitate the market entry of legitimate generic biologic drugs.   The
U.S. has also backed positions that run counter to Congressional efforts
on patent reform, in the area of limiting "runaway" verdicts from patent
trolls.  In the area of trademarks, the earlier versions of the ACTA
would have criminalized acts now considered only civil violations in the
U.S., in a field where legitimate businesses over argue over trademarks
on such items as the term "Windows" or the use of marks like "iPhone."
The U.S. negotiators have also failed to support an exception for the
enforcement of patents in cases of the transport of "goods in transit,"
despite the major problem of legitimate generic drugs being seized in
airports of countries that have different patent laws -- including a
case of AIDS drugs being shipped from India through the Netherlands to
the U.S. Embassy in Nigeria, for use in AIDS programs supported by the
US taxpayers.

There are major concerns about ACTA and privacy.  It is also not
encouraging that the U.S. reportedly is blocking proposals in the ACTA
to address the right of countries to protect public health or to control
anticompetitive practices -- the so called safeguard clauses proposed by
Australia, New Zealand, Singapore and  Canada.   (See Article 1.X on
page 3 of the leaked version of the July 1, 2010 text[3].)

It is not an unreasonable request that the Obama administration join the
37 other countries in the negotiation to support the release of the ACTA
text to the public, so we can see what the negotiators are up to.  After
all, the Obama Administration does share its positions in the ACTA
negotiations with corporate lobbyists.  

2.  http://www.keionline.org/node/802
3.  http://www.keionline.org/misc-docs/acta/acta_1july2010.pdf
James Love, Director, Knowledge Ecology International
http://www.keionline.org | http://www.twitter.com/jamie_love
Wk: +1.202.332.2670 | US Mobile +1.202.361.3040 | Geneva Mobile +41.76.413.6584

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