Secret Draft Treaty Possibly Threatening Generics – Sign-On Letter

The United States, the European Union, Japan, South Korea, Canada, Mexico, Australia and New Zealand are now negotiating a new treaty known as the Anti-Counterfeiting Trade Agreement (ACTA).

The text of what they are negotiating remains secret, but there’s a lot to be worried about. An over-reaching treaty in this field could require Internet Service Providers (ISPs) to monitor all consumers’ Internet communications, interfere with fair use of copyrighted material and undermine access to low-cost generic medicines, among many other dangers.

Does the proposed ACTA contain provisions that would result in these harmful effects?

There’s no way to know, because the treaty text remains secret. There is no legitimate rationale for such secrecy, which denies people around the world an opportunity to comment on and influence the negotiations.

Essential Action is asking organizations and individuals from around the world to sign on to a letter to ACTA negotiators, asking that they immediately make public the draft text of the treaty. The text of the letter, with initial signatories, is below.

If you would like to sign the letter, please send your name, affiliation (if any), city/country and email address to Sarah Rimmington of Essential Action at: . Please specify if you are signing in your individual capacity or on behalf of an organization. **Please note: Our deadline for accepting signatures is Wednesday, August 20, 2008.**

LETTER TO ANTI-COUNTERFEITING TRADE AGREEMENT NEGOTIATORS

Dear [Negotiator],

We are writing to urge the negotiators of the Anti-Counterfeiting Trade Agreement to agree to publish immediately the draft text of the agreement, as well as pre-draft discussion papers (especially for portions for which no draft text yet exists), before continuing further discussions over the treaty. We ask also that you publish the agenda for negotiating sessions and treaty-related meetings in advance of such meetings, and publish a list of participants in the negotiations.

There is no legitimate rationale to keep the treaty text secret, and manifold reasons for immediate publication.

The trade in products intended to deceive consumers as to who made them poses important but complicated public policy issues. An overbroad or poorly drafted international instrument on counterfeiting could have very harmful consequences. Based on news reports and published material from various business associations, we are deeply concerned about matters such as whether the treaty will:

+ Require Internet Service Providers to monitor all consumers’ Internet communications, terminate their customers’ Internet connections based on rights holders’ repeat allegation of copyright infringement, and divulge the identity of alleged copyright infringers possibly without judicial process, threatening Internet users’ due process and privacy rights; and potentially make ISPs liable for their end users’ alleged infringing activity;

+ Interfere with fair use of copyrighted materials;

+ Criminalize peer-to-peer file sharing;

+ Interfere with legitimate parallel trade in goods, including the resale of brand-name pharmaceutical products;

+ Impose liability on manufacturers of active pharmaceutical ingredients (APIs), if those APIs are used to make counterfeits — a liability system that may make API manufacturers reluctant to sell to legal generic drug makers, and thereby significantly damage the functioning of the legal generic pharmaceutical industry;

+ Improperly criminalize acts not done for commercial purpose and with no public health consequences; and

+ Improperly divert public resources into enforcement of private rights.

Because the text of the treaty and relevant discussion documents remain secret, the public has no way of assessing whether and to what extent these and related concerns are merited.

Equally, because the treaty text and relevant discussion documents remain secret, treaty negotiators are denied the insights and perspectives that public interest organizations and individuals could offer. Public review of the texts and a meaningful ability to comment would, among other benefits, help prevent unanticipated pernicious problems arising from the treaty. Such unforeseen outcomes are not unlikely, given the complexity of the issues involved.

The lack of transparency in negotiations of an agreement that will affect the fundamental rights of citizens of the world is fundamentally undemocratic. It is made worse by the public perception that lobbyists from the music, film, software, video games, luxury goods and pharmaceutical industries have had ready access to the ACTA text and pre-text discussion documents through long-standing communication channels.

The G8’s recent Declaration on the World Economy implored negotiators to include ACTA negotiations this year. The speed of the negotiations makes it imperative that relevant text and documents be made available to the citizens of the world immediately.

We look forward to your response, and to working with you toward resolution of our concerns.

Sincerely,

Consumers Union. Publisher of Consumer Reports
Yonkers, NY, USA

Electronic Frontier Foundation
San Francisco, CA, USA

Essential Action
Washington, DC, USA

IP Justice
San Francisco, CA, USA

Knowledge Ecology International
Washington, DC, USA

Public Knowledge
Washington, DC, USA

[list in formation)

(Attachment to Sign-on Letter):

OPENNESS IN TRADE AND OTHER MULTILATERAL NEGOTIATIONS

Negotiating texts are commonly made public in multilateral trade negotiation, although some trade negotiations are characterized by secrecy.

Examples of negotiations where texts are or were made public include:

+ The current Doha Round negotiations at the World Trade Organization;

http://www.wto.org/english/tratop_e/dda_e/dda_e.htm

+ The Free Trade Area of the Americas;

http://www.ftaa-alca.org/FTAADraft03/Index_e.asp

+ The Multilateral Agreement on Investment (although initial texts were not made public)

http://www.oecd.org/document/35/0,3343,en_2649_33783766_1894819_1_1_1_1,00.html

+ Draft text at the World Health Organization, where resolutions are published in advance of consideration and treaty or treaty-like negotiations are handled openly, including this example of follow-on negotiations for the Framework Convention on Tobacco Control:

http://www.who.int/gb/fctc/

+ The World Intellectual Property Organization, including this example of a draft Treaty on the Protection of Broadcasting Organizations:

http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=57213

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For more on ACTA, see: