{ texts for nothing }

Michael Geist points to a couple of very interesting Twitter posts from  the editor of the Globe & Mail’s online politics section. Apparently the Globe had embedded a PDF version of one chapter of a report from Canada’s Auditor-General in this story on Canada’s temporary foreign worker policy. In response, the Auditor-General demanded that they take down the PDF, citing copyright infringement — all Canadian government publications are subject to Crown copyright.

The fact that Crown copyright exists is bad enough. In the US, government publications are in the public domain. This has practical value, insofar as Americans can and do use government information for all sorts of clever and useful purposes without worrying about “intellectual property” restrictions. But more importantly, it squares with the fact that the products of government belong to the public. That the Auditor-General would use the language of copyright to restrict access to public information is shameful.

The Globe has complied with the takedown request, but the PDF itself is still available on Scribd. I don’t know whether the Auditor-General intends to submit a takedown request to Scribd as well, but just in case, here’s a local copy of the report.

As I mentioned last week, the Anti-Counterfeiting Trade Agreement has been shrouded in secrecy since its inception. Governments all over the world have refused to share information about ACTA with their citizens.

Big business, though, has as much access to information about ACTA as anyone could want. Check out this list of “cleared advisors” to the Office of the US Trade Representative. Everyone on the list has full access to the draft text of the agreement and all related documentation. Organizations appearing in the list include:

• Time Warner
• IBM
• General Motors
• Eli Lilly and other Big Pharma companies
• biotech companies
• the RIAA, MPAA, and a number of other lobby groups formed to protect corporate “intellectual property” interests
• Monsanto

Notably absent from the list are public interest groups — you know, the groups that advocate for policies that serve ordinary people instead of big business. The closest thing you’ll find to a public interest group is ANSI. Almost every other organization in the list is either a corporation or a corporate lobby group.

To be fair, this is not a list of groups directly involved in ACTA negotiations. These are just the groups that have access to information about ACTA by virtue of being cleared advisors to the US foreign trade office. In other words, these are the groups that get the special treatment and privileged access that ordinary citizens have been denied, the groups that actually get to sit at the table and shape American government policy.

Now you know whose interests ACTA is being designed to serve.

The Obama administration is using “national security” as an excuse to keep a lid on the controversial Anti-Counterfeiting Trade Agreement (ACTA). Somehow I’m not surprised.

Here’s what happened. Six weeks ago, an American nonprofit filed a Freedom of Information request asking for copies of various documents related to ACTA. Now, in its reply denying the request (PDF), Obama’s foreign trade office is claiming that the documents are “classified in the interest of national security.”

It’s a preposterous claim. ACTA has nothing whatsoever to do with national security. It is a copyright treaty — one that would make penalties for copyright infringement even more severe, and quite possibly invade your privacy and violate your rights in the process. That makes it bad policy, but it’s not even remotely a national security matter. “National security” is simply, and blatantly, being invoked as a quick and easy way to keep a lid on another draconian, unnecessary, and unpopular multilateral trade agreement.

Not that excessive secrecy is anything new when it comes to ACTA. Other parties to the negotations, including Canada and the European Union, have been criticized for refusing to share information about the treaty with their citizens. Last fall, over 100 public interest groups from around the world signed a letter sharply criticizing the secrecy surrounding the treaty process. The EFF is even suing the US government over its refusal to release ACTA-related documents.

Sadly, this sort of closed-door policy development is a growing trend. In the face of several high-profile failures at supposedly “representative” organizations like WIPO and the WTO, not to mention more than fifteen years of broad public opposition, trade negotiations have increasingly been conducted in ways that prevent most of the world’s population from having any real voice. Check out this excellent article on “counterfeit policy-making” for an in-depth analysis of the problem and its consequences. When the White House invokes “national security” to keep ACTA secret, it’s deliberately making international policy development even less democratic than it already was — all for the benefit of the corporate interests that shape government policy in the US and other liberal democracies. Keep that in mind the next time you see a bunch of crazy anarchists marching through the streets: it’s the protesters, not the government policy-makers, who are standing up for your interests.

Ironically, the day after he took office, Obama signed a memorandum committing his administration to “accountability through transparency” and ordering that FOI requests “should be administered with a clear presumption: In the face of doubt, openness prevails.” But when it comes to defending the profits of big business — and make no mistake, that’s what the copyright battle is really all about: protecting outmoded business models that benefit large corporations at our expense — Obama’s White House isn’t going to let a little thing like the public interest stand in its way.

A disturbing rumour:

I’ve recently heard through a grapevine that ACTA negotiants have reportedly signed non-disclosure agreements as a condition of their participation in this week’s secret closed-door meeting in Geneva.

This is an amazing and frightening step backwards in the history of global governance. It also epitomizes the ACTA negotiants’ dismissive attitude towards the importance of credible, transparent trade policy-making in the current global environment.

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.”