Move to publish "secret" anticounterfeiting treaty "modest step"
This article was originally published in Scrip
The Office of the US Trade Representative (USTR) has published a six-page summary on the "secretive" anti-counterfeiting trade agreement (ACTA) that it is negotiating with major trading partners including the EU and Japan, following mounting pressure to do so.
Essential Action, which has being calling for its publication with more than 100 other public interest groups around the world, told Scrip that the move was a "modest step forward".
Robert Weissman, director of Essential Action, said he hoped the move signalled the beginnings of a new progressive policy on transparency at the USTR.
"The Obama administration has broadly advanced a very positive transparency agenda, and it would be inconsonant for the Obama USTR to maintain the culture of secrecy that has engulfed the agency. Those concerned about access to medicines and protecting information sharing on the internet, and many others, have voiced concern about the secrecy surrounding ACTA," he said.
There have been several requests under the US Freedom of Information Act to obtain information on the treaty, but the USTR has denied them on "specious grounds", according to Essential Action, which is based in Washington.
To date, most information on the text of the treaty has come from leaked documents and industry comments (scripnews.com, September 17th, 2008).
The generics industries, both in Europe and the US, have expressed concerns that the treaty blurs the distinction between piracy/counterfeiting and patent infringements. There is concern that the treaty will have a negative effect on the generics sector.
The USTR told Scrip that it published the summary as a direct result of the administration's commitment to be more open and transparent with the public on trade agreements.
The office would not say when the trade partners would next discuss the treaty. A round of negotiations was due in early March, but were postponed as US negotiators wanted to first consult with the incoming USTR senior leadership. "Our trading partners have been very understanding," the USTR says.
The USTR continues to meet routinely on an informal basis with its ACTA partners. For example, on the margins of the World Trade Organization's TRIPS Council meeting last month, they held a stock-taking meeting, which in part addressed transparency and the ACTA summary.
However, Mr Weissman says: "The summary itself is very general and provides very little new information."
In particular, he is concerned about a statement in the summary: "It is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation."
Mr Weissman counters: "This is not a uniform rule, and in fact the standard for trade texts at the WTO is to make draft text public, as it is in many other international negotiating fora."
He also points out that the documents are not kept completely secret from the US public. "They are shared with members of the elaborate USTR advisory committee system, which includes hundreds of corporate lobbyists and representatives."
The summary sets out the topics under discussion in the treaty, including definitions, the legal framework for enforcement, international co-operation, enforcement practices and institutional arrangements.
The treaty will also discuss whether border measures (under customs authorities) should apply to importations or should equally apply to the export and the transit of goods.
This is a hot topic at the moment as Dutch customs authorities detain Indian-made generics in transit to developing countries on allegations that they may be counterfeits.
It will be interesting to see how the treaty eventually ties in with the TRIPS agreement and EU law, although the USTR says it will be consistent with TRIPS and will respect the declaration on TRIPS and public health.
Once finalised, it is intended to help governments more effectively combat the proliferation of counterfeit and pirated goods, the USTR adds. It will also address a number of enforcement issues that lack an international legal framework.