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p2pnet news view P2P | Politics:- In now widely quoted observation, “If Hollywood could order intellectual property laws for Christmas, what would they look like? This is pretty close.”

So said David Fewer of ACTA, the Anti-Counterfeiting Trade Agreement agreement, a dark secret until a version was posted by Wikileaks in May this year.

Fewer is acting director of the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic.

ACTA remains shrouded — at least as far as the people it will affect, are concerned.

But in the US, the Obama administration has shared it with 42 Washington ‘insiders,’ says Knowledge Ecology International (KEI).

Among them are:

• Three people from Google
• Three eBay reps
• An Intel lawyer
• The entertainment cartel’s International Intellectual Property Alliance
• Sony Pictures
• Rupert Murdoch’s News Corpse, and
• Two Business Software Alliance staffers.

Below are the names of people who, says KEI, “received the documents under the NDA, or as members of a USTR advisory board, beginning with the names of the persons who were given the opportunity, and used the opportunity, to view the text under an NDA.”

Table 1: USTR [US Trade Rep] says these people signed a Non-Disclosure Agreement (NDA) to see the U.S. proposed Internet text for ACTA

The additional 10 persons who received the Internet ACTA text as a member of one of the USTR Advisory Boards included the following seven persons from ITAC 15 and three persons from ITAC 8:

Table 2: Persons who received the ACTA Internet text who are members of ITAC 15 – the Industry Trade Advisory Committee on Intellectual Property Rights

Table 3: Persons who received the ACTA Internet text who are members of ITAC 8 – the Industry Trade Advisory Committee on Information and Communications Technologies, Services, and Electronic Commerce

The day the USTR sent KEI the FOIA with the names of persons signing the NDA, the following memo was also sent to selected news organizations.

The following is an October 13, 2009 statement by Sherwin Siy of Public Knowledge, a group that received copies of the text:

Our first exposure to any text was on fairly short notice. We were allowed to view a draft of one proposed section as we sat in a room at USTR with some of its negotiators and counsel. We were not allowed to take any copies of the text with us when we left the meeting about an hour later.We were urged to keep any notes we took secure, and not to discuss the substance of what we saw unless USTR confirmed that the other party had also seen the text. The meeting proceeded with USTR discussing each point of the text in turn as we viewed it for the first time and compared the text to existing statutes, trade agreements, and treaties.

We were invited to set up additional meetings or call USTR to confirm our recollections if we wanted to verify what we remembered from the meeting, as we were not allowed to photograph, scan, or (presumably) transcribe the documents. We were told that some edits might be made in the near future to account for various concerns.

A meeting a few weeks later convened a range of people who had been cleared to see the text, and functioned as a roundtable, at this meeting, a slightly altered version was shown, which in some areas was slightly better, in some slightly worse, but without some of the most troubling aspects resolved.

While we appreciate USTR’s recognition that increased participation is important, and its efforts in that regard, this process is still miles away from anything approaching real, public transparency. In terms of openness, a lot of the tension between what USTR says it wants to do and what has been done so far seems to come from the characterization of ACTA as a trade agreement, when its aims seem considerably broader than that. If we’re going to be seeing a new kind of trade agreement that more broadly affects policy and legal interpretation, we’re going to need a new, more open kind of process that lets the public see what agenda its government is pushing.

Analysis

USTR told KEI the new policy of giving access to documents to a selected group of people meets the promise by the President to be transparent. We were told that everyone who needed to see the documents has seen them. Outside of Public Knowledge and CDT, everyone who received the documents was representing a large corporate entity, including several foreign owned publishers. USTR does not think that KEI needs to see the documents. USTR certainly does not think the broader public should see the documents. The handful of people who did see the documents cannot say what they saw.

The following is a statement on USTR NDA policy by Robert Weissman, President of Public Citizen:

There is a strong presumption in US law favoring openness of government documents for a reason: People have a right to know what their government is doing, not just some people, not even government-chosen representatives of the people. It is self-evident that ad hoc processes to choose a few public interest representatives to comment on material, to counterbalance the broad sharing of the material with a wide swath of self-interested corporations is a deeply flawed process. Public interest groups have different interests, orientations, conflicts and areas of expertise. Worst of all in this process is the conceit that USTR should be selecting who sees policy proposals that will have far-reaching and long-lasting effect on how information and knowledge is shared (or enclosed and monopolized) around the world. This should be part of an open and public debate, full stop.

The following is the KEI statement on the USTR policy:

USTR has decided that the views of the public are unimportant. The use of non-disclosure agreements to this hand picked group is an insult to any pretense of openness. Apparently everyone representing a giant corporation, including foreign owned publishers, could see the text through an NDA. No academic experts were consulted. Among the many civil society groups that pressed USTR to disclose the text, only Public Knowledge and CDT were given access, and both groups are bound by the NDA to not discuss the contents.

“KEI was not offered access to the text under an NDA, and we would not have signed an NDA if we had had the chance,” it says, adding:

“The White House needs to make the ACTA texts public, so that everyone can read them, and speak freely about them.

(Cheers, SteelWolf)

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

pretty close – ACTA, the Hollywood dream: CIPPIC, May 27, 2009
KEI – White House shares the ACTA Internet text with 42 Washington insiders, under non disclosure agreements, October 13, 2009

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