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White House Blocks Disclosure of Secret Intellectual Property Trade Text

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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 -- 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 in a speech at the Import-Export bank.

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.

2010-09-03-08162010_ARK_at_ACTA_Lunch_009.jpg
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.)

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.