According to a recent report on IP Watch, the latest round of negotiations for an Anti-Counterfeiting Trade Agreement (ACTA) held in Rabat, Morocco on July 16 to 17, 2009, resulted in the announcement that after closed-door discussions on transparency, the only agreement reached on transparency was to release draft agendas of future closed-door negotiating rounds. The next round of negotiations will be hosted by Korea in November 2009, and the intention is still to conclude the agreement 'as soon as possible in 2010', according to the Office of the US Trade Representative (USTR).
According to Ms Monika Ermert writing for Heise Newsticker [in German, sorry] Mr Mathias Schäli (CH), participant of the Rabat meeting, has indicated that enforcement of IP on the internet might be the 'most sensitive topic' focussing strong attention from the general public.
Obviously the question of transparency of the ACTA process has been an important toipic on the Rabat meeting, and IP Watch as well as Ms Ermert's reports suggests that this item has been quite controversial. Some countries are said to have argued that publication of ACTA draft texts might even be considered as a bad precedence for other international negotiations, going much too far with regard to transparency over the usual customs of such class of negotiations. This appears to be quite odd as it has been custom since ten years or so to publish such Drafts on the Internet with regard to Diplomatic Conferences on IP matters hosted by WIPO or by the European Patent Organisation.
Mr Jamie Love even went as far as to spread some sort of rumour to the effect that the United States might have proposed that ACTA texts be made public in October but EU is opposing such broad disclosure. I would like to stress that Mr Love does not offer any support for such assumption and, hence, such speculation should be treated with greatest care. Nevertheless, I would very much like to see some Official statement from the EU Commission in this respect.
As I had already pointed out in an earlier posting, one of the more relevant item smight be Section 4 of a leaked Draft (which was empy in the leaked text!) on Special Requirements Related to Information Technology and Internet Distribution. In worst case scenarios, this might well be a placeholder for attempts e.g. to get away with the mere conduit privilege of Internet access providers or something like that, turning them into gatekeepers at will of the stakeholders of the 'ancien regime'.
In this context, the classification remark on the leaked ACTA documents is troubling:
"This Document Contains Foreign Government Information to be treated as US CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*"
And further:
Derived from: Classification Guidance dated February 8, 2008
Reason: 1.4(b)
* This document must be protected from unauthorised disclosure but may be mailed or transmitted over unclassified e-mail or fax, discussed over unsecured phone lines, and stored on unclassified computer systems. It must be stored in a locked or secured building, room, or cabinet."
So, the ACTA Draft documents are allowed to travel via un-encrypted e-mail?
With other words, in terms of usual precautionary measures to protect state secrets in affairs of diplomacy, the ACTA Drafts always have been handled in a virtually open manner. If keeping secret those documents in view of snooping secret services of other countries had been in the focus, much stronger measures surely would have been taken. The sad conclusion of this finding appears to be that the real and single purpose of classifying those papers is to keep civil society (NGOs etc.) out. Professional secret services of other nations will surely see no real challenge to tap into any e-mail exchange of such drafts.
In view on the ongoing bitter row over last-minute efforts of Governments participating in ACTA pressed by vested interests to save dying business models of companies suffering from perceived tendencies of maceration of IP enforcement under the influence of the ever increasing proliferation of the Internet by imposing draconian measures of Internet traffic regulation, all this what we hear from recent ACTA negotiations appears to be less than what might be inspiring confidence. Who would really believe that any kind of hyper-regulation of Internet traffic including mandatory filtering, excessive extension of secondary liability ('Störerhaftung'), and destruction and/or removal of the 'mere conduit' privilege of Internet access providers would in reality and sustainably serve IP owners in particular and the society in general?
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