Sean Flynn sflynn at wcl.american.edu
Wed Sep 22 09:13:34 PDT 2010

ACTA to meet Sept 23: Locking out civil society?

by: Sean Flynn - September 21, 2010 10:08 AM


It is hard to conclude other than that the negotiators of the
Anti-Counterfeiting Trade Agreement, with the Obama Administration in
the lead, do not want meaningful civil society input into the
negotiation of the agreement. 

The latest evidence broke late yesterday afternoon when the USTR
announced that the Tokyo round of ACTA negotiations is starting this
Thursday September 23, not on September 27 as most had thought. This
morning, the Japanese Embassy stated in a personal phone call to me (I
don't know who else they are calling) that there will be a civil society
meeting on Friday Sept. 24 in Tokyo at noon to 1pm. 

The contact is Tokyo for the civil society meeting is
Yoshihiro.takeda at mofa.go.jp 

At each ACTA negotiation since New Zealand, the negotiators have made
time to meet with civil society representatives attending the meeting.
This is really the only opportunity given to ever meet with a large
group of negotiators. But the meetings are getting less and less
substantive and this one appears designed to ensure that no NGOs show

You can't book a plane trip if you don't when to book it for. It takes
15- 20 hours to fly to Japan from the east coast of the U.S. and you
land a day after you take off. So U.S. groups that want to attend the
meeting at the start of it -- you needed to buy your ticket when the
announcement hit after 3pm yesterday and be on a plane now. If you want
to go to the one hour civil society meeting, you need to leave by
tomorrow. Those that have bought a ticket likely have one for next week
- when everyone thought the negotiation would be. So they will miss the
civil society meeting.

Figuring out that the announcement of the date of the meeting was made
yesterday was no easy feat. Two individuals (myself and Malini Aisola
from KEI) inquiring with USTR yesterday about the meeting were first
told that they had to contact the Japanese Embassy for information on
the meeting. We were given the name of Mr. Kazuyuki Takimi, First
Secretary, Economic Section, Embassy of Japan,
Kazuyuki.Takimi at mofa.go.jp, 202-238-6729. 

Mr. Takimi said he did not know when the meeting was going to be held
because he had not spoken to "Tokyo" lately. He said he recalled it
might be meeting on September 23, but could not confirm. He said he had
no agenda and no knowledge of any civil society meeting opportunity. (He
told me about the planned civil society meeting at 10:30am this

In response to additional emails to USTR, Myesha Ward, the public
liaison at USTR, confirmed at 3:30pm that the meeting was taking place
on September 23, but stated there was no agenda. At 4:24pm, I got an
email stating that the agenda had been released at www.ustr.gov/acta 

If you want to laugh - go to that site and try to find the agenda. It is
not in any of the press releases on the top or bottom of the site. It is
not the prominent link on the left for the agenda to the 5th Round -
that was in 1999. It is not in the upper right hand or left hand boxes
where the recent announcements are. Still looking? It starts with the
372nd word in the background essay in the middle page.

Of course, this is just the latest example of the negotiators, and
especially the USTR, actively working to thwart civil society
participation in the creation of what may be the broadest and most
substantial international intellectual property trade agreement of the

Here are some other key points:

*	In every meeting but one, the U.S. has voted against public
release of the negotiating text. 
*	The U.S. is often the only country that votes against such
public release.
*	When the USTR hosted the last round in August, it refused to
publicly disclose that a full round was even taking place until the week
of the meeting. Until then, the U.S. had claimed that the meeting was a
bilateral discussion with the EU. It was not. It was full round with all
the parties present.
*	Since the New Zealand round, there have been opportunities to
meet negotiators; in Lucerne, negotiators held an on-the-record meeting
with civil society representatives selected by civil society themselves.
The USTR backtracked for the meeting held in DC - restricting access to
a group selected by USTR itself and making the meeting an informal lunch
with no opportunity for structured questions and answers. 
*	Since the release of text in April, the USTR has not sponsored a
single on-the-record meeting on ACTA in the U.S.

So ACTA is still being negotiated in secret. Indeed, blocking out civil
society and other representation form the process appears to be the
reason the forum for this discussion was shifted out of the World
Intellectual Property Organization or other forums into this "country
club" process.  

Based on the principles of the WIPO development agenda
(see cluster B, number 15 et seq.), which would apply if this discussion
were held at WIPO, ACTA negotiations should: 

-operate in an open, inclusive, and transparent manner;

-be open to the participation of accredited intergovernmental and non
governmental organizations;

-take into account different levels of development; 

-take into consideration a balance between costs and benefits; 

-be a participatory process, which takes into consideration the
interests and priorities of all member and non-member states and the
viewpoints of other stakeholders, including accredited inter
governmental organizations and nongovernmental organizations. 

We are far from that ideal.


The tenth topic for discussion on the ACTA agenda (
www.ustr.gov/webfm_send/2299) is transparency.

Here are some things the negotiators should adopt as policies for the

1. Announce the exact dates and location (city) of the next meeting at
the end of each meeting, giving civil society as much notice as
negotiators to plan travel, etc. 

2. Announce the specific negotiation location (i.e. hotel, etc.) at
least a month in advance so advocates can book a convenient place to

3. Release the agenda at least a week before the negotiation.

4. Hold a substantive meeting with civil society at each negotiation.
The meeting should include at least 3 hours of questions and answers and
be held on the record. The meeting should be open to all interested
civil society representatives. A speakers list may be created in
advance. Governments should not select who can attend. The meeting
should not be held over a meal, which is a distraction.   

5. Make all announcements in a press release posted where other press
releases go on your websites and emailed out to contact lists.

6. Invite press and other individuals to join an ACTA news email list
where you would send out updates.

7. After each negotiation, release the draft text for comments.

8. At least two weeks before each round, and at least two weeks after
release of text, hold a public hearing to solicit views on the released

Negotiators need to stop treating academics and public interest
advocates as the enemy. We can help you draft a better agreement if you
accept input from us.But we can;t give meaningful input without a
forumand without access to negotiating text. 

For more information or to submit comments, contact
Myesha_Ward at ustr.eop.gov, Kira_Alvarez at ustr.eop.gov,
Kazuyuki.Takimi at mofa.go.jp, Yoshihiro.takeda at mofa.go.jp



Sean Flynn

Associate Director

Program on Information Justice and Intellectual Property

American University Washington College of Law

202 274 4157



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