A flurry of news reports have fallen, on both sides of the Atlantic, around ACTA, the Anti-Counterfeiting Trade Agreement.

ACTA is an effort by a “coalition of the willing” –basically industrialized developed countries– to harmonize legal protections for intellectual property. Although not under the aegis of the World Trade Organization, the negotiations are conduct in GATT-style rounds, the most recent of which concluded in Guadalajara, Mexico, at the end of January. The next round is scheduled to be held in New Zealand in April.

Reports on ACTA negotiations in Le Figaro, Le Monde, The Financial Times, and The New York Times all emphasized one point: secrecy.

What is the problem?

  • Some commentators go too far when they evoke a “secret treaty”. There is no secret AFTA treaty (hopefully: if there were, we wouldn’t know about it, and it probably couldn’t be enforced). It’s the ACTA negotiations that are secret.
  • Some negotiating parties, such as the United States or the European Union, point out that international agreements traditionally have been negotiated in secrecy. Such is the art and practice of diplomacy.
  • In keeping with this tradition, the negotiating parties don’t disclose texts under discussion. Although they have recently issued descriptive press releases, the lack of information and transparency rankles some, especially journalists.
  • For others, diplomatic secrecy offends democratic sensibilities. Concerned citizens should have knowledge of matters under negotiation in their name, they argue. Secrecy is by nature suspect.
  • A part of this offended group bemoans the lack of public access. For them, secrecy is a problem because discussions occur in meetings held behind closed doors, out of public sight. What makes this exclusion unbearable is the input that governments have actively solicited from private interests, mostly corporations that hold intellectual property rights.
  • Another offended group consists of the people’s elected representatives, sitting in national parliaments. They object because they see in ACTA an attempt to bypass parliamentary debate and deliberation, anywhere in the world. At most, they will be asked to ratify a final product, on which they’ve had no say.

I don’t why the flurry of news reports coincided with the adjournment of negotiations. ACTA has been around for a while. Concerned groups have been vociferous in their opposition for years. When papers of record chime in with articles that highlight secrecy, politicians in national governments have good cuse to take notice. Hopefully, ACTA will be shelved.

ACTA’s sponsors have made plenty of false steps:

  • The draft treaty’s name is dreadful: it’s only “anti-”, without being “for” anything. Counterfeiting, like piracy, has become a loaded term that puts some on the opposition from the outset. It’s too bad the drafters didn’t instead highlight cultural heritage, creative rights or protecting innovation.
  • Conducting negotiations outside of an institutional framework only aggravated negative impressions. Holding talks in exotic locales did nothing to dissipate these concerns.
  • Reflexive bureaucratic refusals to provide information only fueled speculation and fears. ACTA has taken on an aura reminiscent of Robert Ludlum’s fictional Operation Treadstone (featuted in the Jason Bourne books and films). At this point, so much time has past, and so much credibility has been lost, that almost anything a government says will be considered by many as misleading or false.