Why Canadians Should Care About ACTA

The released ACTA draft confirms many of the fears about the treaty's substance.

Last month marked an important step in the evolution of a draft international treaty called the Anti-Counterfeiting Trade Agreement, as participating governments – including Canada – responded to mounting global pressure by releasing a current draft version of the text.

Since the ACTA partners – consisting of a small group of countries that also include the European Union, the United States, Japan, South Korea, Australia, New Zealand, Mexico, Morocco, and Singapore – announced negotiation plans in October 2007, ACTA has been dogged by controversy over the near-total lack of transparency. Early negotiations were held in secret locations, with each participating country offering near-identical cryptic press releases that did little more than fuel public concern. After years of secrecy, the eighth round of ACTA talks in New Zealand last month concluded with a surprise, as negotiators promised release of the draft text within a matter of days.

The reversal on the secrecy issue – Canada supported releasing the text, but some governments were adamant they could not make it available until a deal was concluded – highlights the value of public pressure. As politicians and the public demanded greater transparency, the negotiating countries presumably concluded that the issue was becoming a major impediment to reaching an agreement.

Now that the ACTA text is public, some might wonder whether there is still cause for concern. Indeed, given widespread support for measures that target genuine commercial counterfeiting, some might believe that it is time to actively support ACTA.

But a look at the actual text – along with some remaining transparency and process issues – suggests that there are still numerous problems.

From a transparency perspective, the text release still feels like the exception to the general secrecy rule. The ACTA governments have revealed that the next round of negotiations will take place in Switzerland in June, but they currently refuse to provide a specific location or date (a leak last week indicated that it will be held in Lucerne). Moreover, unlike a document leaked last year, the official release scrubbed all references to country positions from the text, making it difficult to discern the Canadian stance.

Of even greater concern are the substantive provisions themselves. Because of the large number of substantive rules and the differences in domestic law among the ACTA countries, fears about specific provisions vary among each country. However, no country faces the prospect of greater domestic upheaval than Canada. From legal protection to digital locks (known as anti-circumvention legislation) to internet service-provider liability, the ACTA text would dictate significant portions of Canadian copyright policy that have been the subject of years of national discussion and debate.

Beyond the fundamental reshaping of intellectual property law within Canada and in other ACTA countries, the agreement is also reframing how those laws are made. The alphabet soup of international organizations typically responsible for these issues – WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD – are all far more open, transparent, and inclusive than ACTA.

Canada has long been a staunch advocate of multilateral processes, which are typically viewed as allowing a country of 33 million to “punch above its weight” in international discussions. ACTA represents a significant threat to the multilateral approach to intellectual property policy making, removing much of the clout Canada previously wielded on these issues.

Public pressure helped make ACTA marginally better, but the release of text only confirms many of the fears regarding the substance of the treaty. Add in the ongoing transparency and process concerns, and it is clear that Canadian public engagement on ACTA is needed now more than ever.