USTR Makes a Down Payment on ACTA Transparency

We’ve been saying for a while now that negotiations on ACTA — the proposed Anti-Counterfeiting Trade Agreement — suffer from a serious transparency deficit. Today, USTR took the helpful step of releasing a summary of the structure of ACTA and the items that may be included in it.

The biggest positive here is the apparent recognition by USTR that greater transparency is needed. Hopefully USTR’s action today today won’t be a one-off thing, but rather will be the start of a new effort to provide information on an ongoing basis. As for the summary itself, it’s still quite high-level. Some of the items — improving international cooperation, fostering expertise towards more effective enforcement — appear perfectly sensible. Most of CDT’s potential concerns relate to Chapter Two, the section on the legal framework. For example, the summary says there is a discussion about what constitutes sufficient damages/remedies. And above all, from CDT’s perspective, there is a section on “Intellectual Property Rights Enforcement in the Digital Environment,” which raises such issues as “the possible role and responsibilities of internet service providers in deterring copyright and related rights piracy over the Internet.”

These are topics for which the details matter. The summary’s brief (two-sentence) paragraph on enforcement challenges in the digital and Internet environment doesn’t yet enable CDT or any other outside observer to offer much substantive commentary. But the summary also says that no draft proposal has been tabled yet in this area, so there may still be time. The main thing is for USTR to embrace the principle that this terrain is too tricky and potentially affects too many stakeholders to unveil the specifics only at the last minute, when the entire thing has been nailed down and there’s no going back. Let’s hope today’s summary is just a down payment, with more specific information to come as the negotiation process moves forward.