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(Secret) US cables reveal: ACTA was far too secret


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US government cables published by WikiLeaks show us that it wasn't just "the usual blogger-circles" (as the US Embassy in Sweden called them) complaining about the secrecy of the Anti-Counterfeiting Trade Agreement (ACTA).

French digital rights group La Quadrature du Net has compiled a list of relevant WikiLeaks cables regarding ACTA. In one, a top intellectual property official in Italy told the US that "the level of confidentiality in these ACTA negotiations has been set at a higher level than is customary for non-security agreements." He added that it was "impossible for member states to conduct necessary consultations with IPR stakeholders and legislatures under this level of confidentiality."

In Sweden, the EU's top negotiator on ACTA told the US embassy there that "the secrecy issue has been very damaging to the negotiating climate in Sweden… The secrecy around the negotiations has led to that the legitimacy of the whole process being questioned."

The inevitable result of such secrecy was leaks and rumors. When the US proposals for the Internet section of ACTA leaked, the head of Sweden's Justice Ministry had "to go public earlier this month to appease the storm of critics by assuring them that the Swedish government will not agree to any ACTA provision that would require changes to current Swedish laws."

And the EU negotiator added a criticism of his own: "the European Commission is concerned that the USG [uS government] has close consultation with US industry, while the EU does not have the same possibility to share the content under discussion in the negotiations."

The "gold standard"

The cables note that critics wanted ACTA to take place before an existing body like WIPO, where processes were in place for transparency and for the involvement of public interest groups. But cables from the US embassy in Japan make clear that the US pushed back against this approach, in large part because it knew other nations wouldn't go along with what it wanted: "a plurilateral, TRIPS-plus Anti-Counterfeiting Trade Agreement (ACTA) which would aim to set a 'gold standard' for IPR enforcement among a small number of like-minded countries, and which other countries might aspire to join."

US Trade Representative official Stan McCoy "stressed that this should be a freestanding agreement, not related to any international grouping such as the G-8 or OECD, which might make it more difficult to construct a high-standards agreement."

In other words, what we got was a "coalition of the willing" bent on creating tough new enforcement rules that they would slowly seek to impose on other countries.

As a Japanese trade official noted, "we should move as fast as possible and keep in mind that the intent of the agreement is to address the IPR problems of third-nations such as China, Russia, and Brazil, not to negotiate the different interests of like-minded countries. The new agreement could serve as a yardstick for measuring the market economy status of countries such as China and Russia."

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