Secret Anti-Piracy Treaty Details Going Public


Countries negotiating a major cross-border agreement to crack down on intellectual property crimes have agreed to release previously secret draft language of the controversial accord this week.

The Office of the U.S. Trade Representative (USTR) has confirmed plans to publish the draft text of the Anti-Counterfeiting Trade Agreement (ACTA) this Wednesday, following a series of successful negotiations in the eighth round of talks on the agreement last week in New Zealand.

USTR spokeswoman Nefterius McPherson said that the negotiating countries are very close to a final deal, though differences remain over the language concerning enforcement mechanisms for dealing with trademark counterfeiting and copyright piracy.

"The agreement can be concluded soon if other participants make it a priority to achieve such progress now," McPherson said in a statement.

Many in the IT sector, particularly the software industry, have been closely watching the ACTA negotiations in the hope of achieving additional safeguards to curb what they describe as rampant piracy and counterfeiting, particularly in overseas markets. However, some of the nations identified as the leading homes for piracy and other high-tech intellectual property crimes, such as China and India, are not involved in the ACTA negotiations.

The Business Software Alliance, the leading lobby for the software industry, estimated that its constituents sustained global losses of $50.2 billion in 2008, up five percent from 2007.

The language of ACTA has been a closely guarded secret, with negotiators requiring stakeholders to sign non-disclosure agreements before viewing any portion of the draft documents. That level of intrigue has set off alarms at many digital-rights groups, which have warned against industries, such as software and entertainment, that have a vested interest in tough intellectual property enforcement standards hijacking the negotiations and securing language that would codify rigid penalties for copyright offenses.

But those groups received some relief with the announcement of the coming disclosure.

"While the participants recognize the importance of responding effectively to the challenge of Internet piracy, they confirmed that no participant is proposing to require governments to mandate a 'graduated response' or 'three strikes' approach to copyright infringement on the Internet," negotiators from USTR, Japan, the European Union and other countries said in a joint statement, seeking to address concerns that users could see their Internet accounts shut down for downloading or sharing copyrighted content as a result of the agreement.

The negotiating countries have also confirmed that the final agreement will not include provisions requiring border agents to search travelers' baggage or electronic devices.

Some groups that have been pressing for transparency in the ACTA negotiations hailed the announcement from the Office of the U.S. Trade Representative as a significant victory.

"The decision to make the ACTA text available for public review is a major turning point," Gwen Hinze, the Electronic Frontier Foundation's international director, wrote Sunday in a blog post. "We can now have a serious public debate about the impact of ACTA on citizens' lives. No more shadow boxing. No more opportunities for negotiating countries to dodge answering hard questions."

However, the disclosure of the draft language might mean very little if the USTR and other negotiating delegations aren't receptive to public feedback, critics warned.

For Public Knowledge, a prominent digital-rights group that has long been a champion of reforming copyright laws to account for the new ways that people are accessing and repurposing content in the Web 2.0 era, the announcement was a welcome first step toward transparency. Staff attorney Rashmi Rangnath said the group is "cautiously optimistic" about the publication of the ACTA draft, but that it remains concerned that there was no accompanying mention of plans to accept comments that could shape the final version.

"[Public Knowledge] and many other public interest groups have long called for a public release of the ACTA text," Rangnath said in a blog post. "However, such a release is not an end in itself. Rather, it is a means to allow the public to influence the substance of ACTA. So, the usefulness of a public release should be judged based on the USTR's willingness to solicit public comment and, more importantly, change the ACTA text based on such comments."

The negotiating countries plan to reconvene in Switzerland in June, with the hope of concluding the final agreement this year.

Kenneth Corbin is an associate editor at, the news service of, the network for technology professionals.