Originally posted to The Information Policy Blog.

Canada, the United States, the European Commission, and six other countries are secretly negotiating a trade agreement that could sacrifice fair dealing and privacy rights, violate civil liberties and the due process of law, and have a chilling effect on free speech, all in the name of strengthening intellectual property laws.

The Anti-Counterfeiting Trade Agreement is only getting attention now because a discussion paper with some details of the agreement was leaked to Wikileaks on Thursday. Since then, there have been two stories about ACTA on Slashdot and articles in a number of Canadian newspapers, including the Globe and Mail and various components of the Canwest empire.

Among other things, ACTA would:

  • make infringement a criminal, rather than a civil matter (you can go to prison for trivial non-commercial infringement under ACTA);
  • give border guards the authority to search your possessions for infringing content, and confiscate and destroy your laptop or iPod if they decide it has infringing content on it;
  • require ISPs to spy on their customers’ online activities and block access to infringing content; and
  • allow governments to share personal information about their citizens, evading domestic privacy laws.

These provisions are excessive. First of all, IP protections already quite strong, and existing agreements like TRIPS already cover the concerns ACTA is intended to address. Proponents of the new treaty have presented no evidence that it is necessary. The proposals stem from an unquestioned assumption that stronger IP rights are a good thing, despite vociferous objections from the library community, public interest groups, and ordinary people who feel that IP laws are already too harsh and unbalanced. Unsurprisingly, ACTA apparently makes no attempt to safeguard fair dealing or other end user rights — it’s all about defending the interests of intellectual property owners, with no recognition that copyright and similar laws are supposed to strike a balance between creators’ and users’ interests.

But it’s the new powers proposed to defend owners’ interests that are most alarming. Of particular concern is the plan to turn border guards and ISPs into copyright cops. Border guardsa and ISPs are not qualified to determine what qualifies as infringing content. Border guards in particular are paid to blindly enforce poorly designed rules (as anyone who’s had their toothpaste or hair gel confiscated at a security checkpoint can tell you). They are not IP experts, and no matter how well-trained they may be, they are not qualified to evaluate whether or not you have the right to have a copy of some song on your iPod.

The same is true of the ISPs, as we’ve seen over and over again in the years since the DMCA came into effect in the United States. ISPs have neither the time nor the expertise to judge infringement claims on their merits; as a result, they end up taking infringement claims at face value. In the US, where a notice-and-takedown system prevails, claims of copyright infringement are frequently abused to attack people exercising their free speech rights. The Chilling Effects Clearinghouse documents hundreds of these abuses. ACTA would only make the problem worse by expanding it to other countries — including Canada.

Underlying these concerns is the plain fact that the ACTA proposals would violate the due process of law. Border guards would be permitted to examine, seize, and destroy your property without judicial oversight or proof of guilt. ISPs could cut off your Internet access, not even because you’re a proven infringer, but because some random entity claims you’ve infringed their IP rights. That’s not how things are supposed to work in a democratic society.

But of course, there’s nothing democratic about ACTA. The agreement itself has been developed behind closed doors. It will likely be tabled for discussion at the upcoming G8 meeting this July, but so far no draft text has been released for public scrutiny. Civil society groups have been systematically excluded from the process of drafting the agreement (private industry lobby groups, by contrast, have apparently been involved from the beginning). There was a three-week consultation period in April, but if the government is only giving the public three weeks to respond to something, you can be sure they’re not particularly interested in what the public has to say. Organizations with limited resources, like BCLA, often can’t research the subject, draw up a response, and submit it within that period.

Even the structure of the agreement is anti-democratic. It’s being negotiated among powerful developed countries with strong intellectual property regimes. Developing countries, which have a very different IP agenda, have so far been excluded from the discussion. If ACTA is enacted, those countries will be forced to sign on, and are expressly forbidden from renegotiating the terms of the agreement when they do so.

ACTA is a bad piece of work. It’s unnecessary, unbalanced, and excessive; its development and proposed implementation are profoundly undemocratic; and it will seriously undermine fundamental rights and principles like privacy, free speech, and the due process of law — all in the service of narrow private interests. Librarians, and all Canadians, should oppose this alarming agreement.

UPDATE, May 30: Michael Geist reports that ACTA is “gaining steam, with a binding international agreement likely by the end of the year.”