What We Don’t Know About ACTA

The anti-counterfeiting treaty, which could radically rewrite the rules of internet use, is being negotiated behind closed doors.

The latest round of negotiations for the Anti-Counterfeiting Treaty Agreement has just wrapped up under a heavy veil of secrecy. The treaty, which could radically rewrite the rules of internet use, has been in the works for three years now, yet the details of the talks have been kept firmly under wraps.

Over the last few months, the Harper government has attempted to deflect criticism by assuring Canadians that, despite the secrecy, there is nothing to worry about.

Somehow, I have trouble believing this. One of the earliest rules you learn in politics is that if something is in the public interest, it should be discussed in the public realm. Even previous international treaty negotiations for the World Intellectual Property Organization had public and NGO involvement.

The negotiators for ACTA, however, have frozen out citizens, NGOs, and the elected representatives of every major Western democracy. So, the million-dollar question is – if publicly accountable representatives are having the door shut in their face, who is being given the inside track?

If you guessed the U.S. corporate entertainment lobby, you guessed right. For example, the Recording Industry Association of America has made presentations to the United States Trade Representative (USTR) on the benefits of ACTA.

The RIAA, of course, is notorious for its scorched-earth campaign against its own consumers. They have launched multi-million dollar legal actions against single mothers and high school students for downloading MP3 files. Needless to say, with the likes of the RIAA helping advise ACTA, the treaty has quickly moved from a war on counterfeiters to a war on consumers.

The problem with negotiating digital laws without public input is that it can create incredibly one-sided rules that have a serious impact on citizens’ rights and digital innovation. For example, under proposed terms of the treaty, your local ISP provider would be legally liable for anything you download. This is known as the “safe harbour liability” regime. It would allow the entertainment lobby to launch multi-million dollar lawsuits against local internet service providers, even though such moves are clearly in violation of current Canadian law.

Other proposals could open the door to denying you access to an internet account if a rights-holding company makes three accusations against you for downloading infringements. No legal remedies. No ability to argue your case. You would become a persona non grata in a digital world.

But that’s not the end of it. How about allowing customs officials to grab your child’s iPod or your laptop at the airport to search for what you have downloaded.

Such a regime would run roughshod over personal privacy rights and domestic law. It would place severe limits on the ability of innovators to conduct research or start-up companies to compete against more established competitors in the digital realm. Most of all, it would snuff out the fledgling digital commons that has helped reshape consumers into citizens and creators.

Trade Minister Peter Van Loan says that the government’s active participation in these secret talks doesn’t mean they would sign onto anything that undermines Canadian legislation. But here’s the kicker – the trade agreement could be concluded before new copyright legislation is introduced, thereby tying Canada’s hands to the commitments made behind closed doors to ACTA.

Quite frankly, the government has no mandate to negotiate away our domestic rules for protecting copyright. We shouldn’t allow our laws to be usurped to benefit corporate business models that stubbornly refuse to adapt in the face of consumer change.

The New Democratic Party has pushed consistently for an update to Canada’s copyright laws to protect the rights of artists and ensure we have the tools necessary for innovation. We need to adopt new models of monetization that will ensure that Canadian creators are actually paid for their work.

It’s time to shine a light on the ACTA negotiations. It’s time we exposed the murky links between trade negotiators and corporate lobbyists. Most of all, it’s time to put the public interest on the table when the future of the digital commons is being discussed.