Concerns Raised About Secrecy of IP Agreement

WASHINGTON — The U.S. Trade Representative is in the midst of negotiating a landmark intellectual property agreement with about three dozen other nations that could dramatically reshape international copyright enforcement and other matters of IP policy.

The problem for some is that almost no one knows what is actually in the Anti-Counterfeiting Trade Agreement (ACTA), and those who do are bound to silence by non-disclosure agreements.

Here at Google’s policy outpost in the nation’s capital, the search giant hosted a panel discussion exploring some of the potential ramifications of the agreement, which is supported by many of the industries that suffer the most from copyright infringement, such as the entertainment and software sectors.

Several of the panelists voiced concerns about the secrecy of the negotiations, as well as its designation as an executive agreement, rather than a treaty that would require congressional approval.

Despite the many unknowns surrounding the contents of the agreement, it is generally understood as an effort to harmonize the efforts of the participating nations to protect intellectual property rights. That implies that some of the less controversial provisions will involve mechanisms to improve cooperation among U.S. and foreign law enforcement officials.

But of greater concern to advocates of progressive copyright and IP policies is the fear that ACTA would alter the widely varying provisions of IP law among the signatories. There is also the concern that U.S. companies, including the host of today’s event, could lose some of the protections they currently enjoy under U.S. copyright law, such fair use and the safe harbor clause in the Digital Millennium Copyright Act.

“If this were just about counterfeiting, this would be a much shorter and simpler discussion,” said Jonathan Band, an attorney with the eponymous firm Jonathan Band PLLC. His concern is that ACTA is likely to snowball into an overly-broad IP omnibus agreement, spanning well beyond counterfeit to include patents, trademarks, copyright and other aspects of intellectual property.

The lone discussant on hand today to speak in support of ACTA was Steve Metaliz, an attorney with the law firm Mitchell, Silberberg & Knupp, which counts as clients several industry groups favoring the treaty, including the Motion Picture Association of America, and sought to dispel concerns that the agreement could circumvent Congress and preempt U.S. law.

“This is being negotiated as an executive agreement that by my understanding by definition has to be consistent with U.S. law,” Metaliz said.

But that’s small solace for critics who fear that the agreement could lock U.S. policymakers into a binding multilateral agreement that would freeze the nation’s intellectual property laws as they stand today.

“Even if it is now consistent with U.S. law, it will prevent Congress and it will prevent the courts from allowing the law to evolve in the future,” Band said.

Similar concerns arose from Ryan Clough, the legislative counsel to Rep. Zoe Lofgren, a California Democrat representing Silicon Valley.

Clough said Lofgren worries that Congress could be “hamstrung if we want to revise U.S. copyright law to account for innovation,” adding that she and other members are also growing increasingly concerned with the secrecy of the negotiations. “Only recently has this agreement gotten congressional attention in any form,” he said.

He also expressed concern that some of the countries where copyright piracy is most pervasive, such as China and Russia, are not participating in the ACTA negotiations.

For more outspoken critics like James Love, director of the group Knowledge Ecology International, the U.S. involvement in the agreement has all the trappings of a back-room power play on the part of business lobbies like the U.S. Chamber of Commerce.

“The chamber and other groups believe that transparency doesn’t work to their advantage,” Love said. “This is an example of Washington, D.C. at its worst. This is an insider game.”

But Metaliz was quick to remind the panel that in a multilateral treaty with nearly 40 nations, U.S. business interests can’t alone dictate the terms of negotiation.

“The reality is that governments have to negotiate with governments,” he said. “If you look at this in context, there is more transparency relatively speaking in this than most previous trade agreements.”

Metaliz envisions the agreement setting a baseline standard for global IP protection along the lines of the U.S. Supreme Court’s 2005 ruling the MGM v. Grokster case, in which it held that a company whose business model is predicated on enabling violating intellectual property rights can be held liable for secondary infringement.

For Metaliz, that case, which was settled with a unanimous ruling, represents a bright line distinction as far as the law is concerned, one that he would like to see applied internationally.

“If you’re going into business to get other people to infringe, that’s illegal,” he said.

But others don’t see the bright line in secondary infringement law, and worry that if ACTA veers sets standards for that area of intellectual property, it will invariably set new precedent for U.S. law.

“The law here is very unstable and constantly evolving,” Band said. “When we’re talking about coloring within the lines, the point is we don’t even know where the lines are.”

Kenneth Corbin is an associate editor at, the news service of the network.

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