The Anti-Counterfeiting Trade Agreement (ACTA) currently under negotiation is a global intellectual property rights treaty which addresses copyright, as well as patent and other areas.

It would appear to be a secretive process.

Indications from behind closed doors  suggest that the negotiators wish to adopt similar provisions to the Notice and Takedown and anti-circumvention provisions included in the United States’ Digital Millennium Copyright Act (DMCA). A version of Progressive Response, a/k/a “Three Strikes,” is also being considered.

Those participating in the treaty’s negotiations include representatives of the US, European Union (EU) , Australia, Switzerland, Japan, Canada, South Korea, etc. governments. And the number of participants is growing.

The seventh negotiating round occurred in Guadalajara, Mexico in late January.  The next round will take place in New Zealand in mid-April, and the ninth round is scheduled before the TRIPS Council in Geneva early in June.

While it appears that this treaty’s negotiations are not occurring under the auspices of any recognized supranational governmental organization such as G8, WTO, WIPO or other existing formal structures, there appears a tacit recognition that there should be a global organization created for ACTA oversight. The proposed name is ACTA Oversight Council.

The role of ISPs, in terms of their potential responsibility regarding copyright (among other things), is a core topic for debate and possible agreement.

There are many aspects of these developments that could have significant, fundamental effects on copyright laws in the years to come.  It appears that national law makers have decided that the existing processes for dealing with national and global IPR issues are inadequate and too cumbersome. They are therefore choosing a new route and developing new processes.

The initial announcement by the EU, US, Switzerland and Japan appears to build upon a recent discovery by the EU: The EU found treaties to be more convenient than existing legal processes during their renegotiation of the EU constitution to underpin an expanded EU and to change its workings and governance. EU institutions and governments found that the process of negotiating constitutions to be too cumbersome and often unpopular politically at national level. They found the constitution to be too difficult to bring in through national parliaments (viz France, Denmark, Ireland and the Czech Republic), and that they could achieve the same objectives more efficiently by negotiating treaties that become legal obligations on national legislatures.

At the same time, there does appear to be some recognition of the closed nature of the ACTA negotiations.  Last Wednesday, the European Parliament voted, by an overwhelming 663-13 margin, to call for transparency and full disclosure on ACTA negotiations and to raise concerns regarding the Progressive Response items amongst others.  The European Parliament is currently being kept in the dark by those in EU institutions negotiating the treaty behind closed doors and without visible democratic approval. Unless fully informed throughout, the Parliament has threatened to bring a case before the European Court of Justice to force more transparency in the process.

Similarly, various US-based advocacy groups have raised alarms about the secrecy of the process, including the Electronic Frontier Foundation and Public Knowledge.

ACTA appears no less than a mechanism for changing IPR related laws under the guise of international partnership and cooperation. It therefore has the ability to affect national and international IPR laws and regulations in a way that does not require any of the same scrutiny at national levels.  What have been national legal issues to be decided by courts of law could now conveniently become regulations which are adjudicated and enforced by non-governmental organizations.  The accountability of national governments in these areas to their electorates may be subverted by extraterritorial laws and regulations.

The possibility that new international trade agreements within a treaty can be brought into national law implies creating new national legal processes which may or may not conveniently fall into the existing frameworks. In other words, this treaty may be creating new national legislative processes in parallel with the existing ones.  Certainly different countries will be affected in different ways.

The treaty may create new legal precedents, such as the role of ISPs as judge and jury on intellectual property offenses without an adequate appeal and recourse within normal national law making processes.

Most interestingly, national lobbyists, national companies, SMEs, and individuals are unable to participate in or democratically influence this process. National debates may be largely superfluous. Even regional entities (e.g., lobbyists in Brussels or Washington) could become limited in visibility, access, and impact. Influence will be limited to global organizations and global corporations with deep pockets.

These negotiations are being held in apparent secrecy behind closed doors.  This is reminiscent of the EU lawmaking process, in which final texts emerge from the institutions to receive approval (rarely rejection) by the EU Parliament, which then become obligations on national legislatures.  Traditional law making processes by national legislatures in the full glare of searching democratic lights may become casualties.

As a more particular example of the potential impact of ACTA on digital copyright, the practical experience of Progressive Response enactment in some countries may not educate the negotiators but rather instead increase their resolve to use such devices to enforce global intellectual property agreements.

The implications are made all the more disturbing by the lack of openness of the ACTA process.  If anyone has an insider view, we would appreciate a comment posted here!

Bill Jones is CEO of Global Village Ltd.