ACTA - Time to Walk Away?

canada.com

David Gonczol, Ottawa Citizen

Here's Jamie Love in the Huffington Post on the ACTA leaks story broken by Michael Geist.

Here's The Atlantic.

Here's the New Zealand Herald.

This is going into the main stream.

If all or indeed any substantial portion of the rumours about ACTA (three strikes +, DMCA +, WIPO+, border searches of iPods, cell phone etc, for MP3s, etc.) are true, and if Canada goes along with this "agreement", then Canada will forfeit its sovereignly to determine its own IP policy. For starters, this summer's mammoth copyright consulation will have been for nothing.

So if there is substantial truth to these rumours, then Canada needs to seriously consider walking away from this secret treaty/agreement process. Maybe sooner rather than later.

We know that there is unprecedented secrecy over this process. Neither the WTO nor WIPO ever worked this way. There is no reason or justification for this. Absolutely none other than industry induced secrecy. You can be sure that the RIAA and MPAA know exactly what is going on here.

We know that Canada has very limited ability to influence the Americans. As Trudeau said, when a mouse gets in bed with an elephant, it is the mouse that needs to worry about being rolled over.

Canada has long since lost much if not most of its honest broker status in international IP and other diplomatic circles. We likely don't have the clout any more to stand up to the Americans in a negotiating room or to broker some more moderate IP arrangement. If we really think we can do that, maybe we should remain at the ACTA table for a while. But if we can't, maybe we should just walk away. And maybe sooner rather than later.

Walking away could preserve Canadian sovereignty to do what is best for Canada, which is what we really ought to care about. It might help Canada to regain international credibility and bargaining strength.

From what we have seen in the leaks to date, there is really nothing in the proposed ACTA that would benefit Canada. We do not have a serious piracy or counterfeiting problem here unless one believes the recycled and circular back-of-the-envelope “evidence” from the usual lobbyists. One has to look very hard to find fake Rolexes or pirate CDs or DVDs in Canada. I have frankly never seen this stuff in Canada. Compare mid-town Manhattan where these things are “in your face.” Claims about counterfeit medicines and health and safety issues, etc. are a smokescreen for the real agenda here, which is an ultra strong copyright and trade-marks regime, with huge “ex officio” powers given to border guards, who will be informed and educated by industry “experts.” Such ex officio action has recently resulted, for example,. in scandalous delays of perfectly legal generic AIDS drugs en route through The Netherlands to developing countries. In any case, one does not need ACTA to deal with any issues involving fake medicines or counterfeit Christmas tree decorations.

People don’t like surprise attacks on their civil liberties - and ACTA could be a very big surprise indeed, resulting in cut-offs of internet service and warrantless searches of electronic devices at the border for copyright infringement - i.e. downloaded songs and movies.

Anyone who doesn't believe that the US is serious about this should look at a recent bulletin dated August 20, 2009 from U.S. CUSTOMS AND BORDER PROTECTION CBP DIRECTIVE NO. 3340-049 which begins as follows:

PURPOSE. To provide guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or digital devices, encountered by U.S. Customs and Border Protection (CBP) at the border, both inbound and outbound, to ensure compliance with customs, immigration, and other laws that CBP is authorized to enforce.

These searches are part of CBP's long-standing practice and are essential to enforcing the law at the U.S. border. Searches of electronic devices help detect evidence relating to terrorism and other national security matters, human and bulk cash smuggling, contraband, and child pornography. They can also reveal information about financial and commercial crimes, such as those relating to copyright, trademark and export control violations. Finally, searches at the border are often integral to a determination of admissibility under the immigration laws

(emphasis added)

And this is BEFORE ACTA. This US will expect this and more from other ACTA partners.

That's right. Copyright “violations” (whatever that may mean) are right up there with terrorism and child pornography. Take no comfort in promises of a “de minimis” exception policy. First of all, I'm sure that RIAA and MPAA and their Canadian branches, CRIA and CMPDA, will lobby hard to make sure that “de minimis” means some truly low number such as five or ten MP3 files or one or two movies for which the traveller can't prove “ownership” on the spot. And do we really want border guards detaining us for hours and our devices for up to days, weeks or months while they determine whether we are “de minimis” or not? And what about songs that we have legally ripped to our iPods, according to the RIAA and CRIA. from CDs that we have bought and paid for? What if the customs agent doesn't believe that we own the CDs? And don't bring any children with you on your travels. (Unless you want to leave them in the care of border officials!)

They are notorious “pirates.”

If Canada remains in this negotiation in order to try to moderate the extremists, the minimum price for so doing should be complete transparency and immediate publication of all draft texts, as has been the normal practice at the GATT, WTO, WIPO and elsewhere for decades. That is the only way that moderation can hope to be achieved. And we should still be prepared to walk away.

HK

PS - November 6, 2009: This is front page news in today's Ottawa Citizen.