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Knowledge Ecology International director James Love was among those at the recent three-day WTO ministerial meeting in Geneva.“I took the non-stop United Airlines Flight back to Washington, DC,” he posts on KEI, continuing >>>On the airplane were a number of U.S. government officials including the head of USTR, Ambassador Ron Kirk. (right).I had a chance to talk to Kirk about the secrecy of the ACTA agreement. He said the ACTA text would be made public, “when it is finished.” I told him it that was too late, and the public wanted the text out now, before it is too late to influence anything.Kirk said he was aware that there were those who wanted the text public, but the issue of transparency was “”about as complicated as it can get,” and Kirk didn’t want people “walking away from the table,” which would likely happen if the text was public, he said.I said that it was untrue that IPR negotiations are normally secret, mentioning as examples that drafts of the other IPR texts, including the proposed WIPO treaty for disabilities and the climate change agreement language on IPR, as well as several drafts of the FTAA text and the 1996 WIPO copyright treaties had been public.Kirk said that ACTA “was different” and the topics being negotiated in ACTA were “more complex.”I brought up to Kirk that the USTR had shown ACTA text to dozens of corporate lobbyists and all of its trading partners in the ACTA negotiation, and the text was only secret from the public.“Kirk did say USTR was discussing this issue with the White House and its trading partners, but that was about all he could say at that moment,” Love adds.But, “*Who* exactly would walk away from the table?” – wonders Glyn Moody on Open, going on:“Why on earth would they do such a thing if there’s nothing to hide, and the treaty will be made public anyway? This answer is pure and utter drivel — evidently the weak best that he could come up with after being put on the spot by the quick-thinking Love.“It basically amounts to each delegation trying to suggest that while *they* are in favour of opening up, the other delegations would go bananas, and so, regretfully, everything remains shrouded in secrecy.“It’s a kind of sick variant of the prisoner’s dilemma, as implemented by and for self-serving delegations.”42 Washington ‘insiders,’ACTA remains shrouded, at least as far as the people it will affect, are concerned, said p2pnet recently, continuing in the US, the Obama administration shared it with 42 Washington ‘insiders,’ says Knowledge Ecology International (KEI).Among them?Three people from GoogleThree eBay repsAn Intel lawyerThe entertainment cartel’s International Intellectual Property AllianceSony PicturesRupert Murdoch’s News Corpse, andTwo 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 ACTAName Firm DateEmery Simon Business Software Alliance (BSA) 08/11/09`Jesse Feder Business Software Alliance (BSA) 08/11/09Bill Patry Google 08/11/09Daphne Keller Google 08/11/09Johanna Shelton Google 08/11/09Lisa Pearlman Wilmer Hale 08/11/09Robert Novick Wilmer Hale 08/11/09Bob Kruger Consultant to eBay 08/13/09Brian Bieron eBay 08/13/09Hillary Brill eBay 08/13/09Sarah Deutch Verizon 08/17/09David Weller Wilmer Hale 08/17/09Steve Metalitz International Intellectual Property Alliance (IIPA), Mitchell Silberberg & Knupp LLP 08/20/09Veronica O’Connell Consumer Electronics Association (CEA) 08/25/09Jim Burger Dow Lohnes, Counsel to Intel 08/27/09Jonathan Band Jonathan Band PLLC 09/01/09Gigi Sohn Public Knowledge 09/01/09Rashmi Rangnath Public Knowledge 09/01/09Sherwin Siy Public Knowledge 09/01/09Maritza Castro Dell 09/02/09Jeff Lawrence Intel 09/07/09Mathew Schruers CCIA 09/09/09David Sohn Center for Democracy and Technology (CDT) 09/22/09Michael Pericone Consumer Electronics Association (CEA) 09/22/09Ryan Triplette Intel 09/22/09Janet O’Callaghan News Corporation 09/23/09Chris Israel PCT Government Relations 09/23/09Alicia Smith Sony Pictures Entertainment 09/23/09Cameron Gilreath Time Warner 09/23/09Seth Greensten Constantine Cannon LLP, for Consumer Electronics Association(CEA) 09/24/09Daniel Dougherty eBay 09/29/09David Fares News Corporation 09/30/09The 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 RightsName AffiliationAnissa S. Whitten Vice President, International Affairs and Trade Policy, Motion Picture Association of America, Inc.Eric Smith President, International Intellectual Property AllianceNeil I. Turkewitz Executive Vice President, International, Recording Industry Association of AmericaSandra M. Aistars Assistant General Counsel, Intellectual Property, Time Warner Inc.Stevan D. Mitchell Vice President, Intellectual Property Policy, Entertainment Software AssociationThomas J. Thomson Executive Director, Coalition for Intellectual Property RightsTimothy P. Trainer President, Global Intellectual Property Strategy Center, P.C., Zippo Manufacturing CompanyTable 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 CommerceName AffiliationJacquelynn Ruff Vice President, International Public Policy, and Regulatory Affairs Verizon Communications Inc.John P. Goyer Vice President, International Trade,Negotiations and Investment, U.S. Coalition of Service IndustriesMark F. Bohannon General Counsel and Senior Vice President, Public Policy, Software and Information Industry AssociationThe 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.USTR NEWSUNITED STATES TRADE REPRESENTATIVEhttps://www.ustr.gov Washington, D.C. 20508 202-395-3230MEMORANDUMTO: Reporters and EditorsFROM: Carol Guthrie, Assistant USTR for Public and Media AffairsDATE: October 9, 2009RE: Update on USTR Preparation for Upcoming ACTA RoundThe next round of Anti-Counterfeiting Trade Agreement (ACTA) negotiations will be held in Korea in the first week of November 2009. Today USTR is releasing the draft agenda for that meeting, which will cover enforcement procedures in the digital environment, criminal procedures to deal with counterfeiting and piracy, and transparency issues. The draft agenda can be found on the ACTA page of the USTR website here.In preparing for this upcoming round of ACTA negotiations, USTR has broadened its consultations to include a diverse range of views including not only the cleared advisors who give input to USTR on a regular basis on intellectual property matters, but also to interested domestic stakeholders representing a broad range of views and expertise on internet and digital issues, including representatives from non-governmental organizations (NGOs) and industry leaders in intellectual property and technology.The input of these additional domestic stakeholders has been crucial for USTR in preparing for the complex nature of these upcoming discussions, where USTR will be pressing for provisions that strengthen the ability of governments to deal with the serious issue of internet piracy, while at the same time ensuring that the balance of rights and limitations and exceptions found in US law is also reflected. In order to increase transparency while still maintaining confidentiality, these individuals were asked to sign non-disclosure agreements before viewing the current ACTA text or giving input to USTR. USTR strives to be as open and transparent as possible to the American public while also maintaining the ability of ACTA negotiating partners to engage in the frank exchange of views necessary to reach agreement on complex issues.BACKGROUNDNegotiations on the ACTA began in June 2008. The objective of the ACTA negotiations is to create a new, state-of-the art agreement to combat counterfeiting and piracy. The United States has been working with several trading partners, including Australia, Canada, the European Union and its 27 member states, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, and Switzerland, to negotiate the agreement. When it is finalized, the ACTA is intended to assist in the efforts of governments around the world to combat more effectively the proliferation of counterfeit and pirated goods, which undermines legitimate trade and the sustainable development of the world economy, and in some cases contributes to organized crime and exposes American consumers to dangerous fake products.The U.S. approach to the legal framework provisions of ACTA has been to view the IPR enforcement provisions of recent U.S. free trade agreements as a model. Members of the public with questions about the status of the negotiations should contact Kira Alvarez, Chief Negotiator and Deputy Assistant U.S. Trade Representative for Intellectual Property Enforcement at (202) 395-4510.###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.AnalysisUSTR 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.
