This week the White House sent out a press release touting the Obama
administration's efforts to increase transparency in government. "For too long
Washington has closed itself off from the oversight of the American public,"
President Obama said. "That's why my administration is taking concrete steps to
build a government that's more transparent, open and accountable."
In some ways the administration has successfully moved toward openness and
transparency. The FCC's recently released National Broadband Plan is a model of
transparency. In developing the plan the Commission convened
dozens of workshops and public meetings. Commissioners and staff openly
discussed potential policy directions and invited others to support or
contradict them. All stakeholders had ample opportunity to provide input, and
the result was a thoughtful and nuanced proposal.
Unfortunately, such openness and transparency is absent from the
administration's negotiation of a very important global agreement, the
Anti-Counterfeiting Trade Agreement (ACTA).
ACTA is a multilateral global copyright agreement backed by the big-content
companies, originated in the Bush
administration and now being pushed by the Obama White House. The fact that
you know little or nothing about ACTA is not coincidental. Supporters of this
unwise agreement know that if it were exposed to the light of day, consumer
outrage would stop the agreement from becoming law.
So what is ACTA? Proponents say it is merely an international agreement to
harmonize enforcement actions against intellectual property violations. Indeed,
some parts of ACTA make sense, such as provisions dealing with counterfeit
goods. But others are deeply troubling. ACTA end-runs Congress by changing
U.S. copyright law and stripping Congress of authority to fix problems with
copyright statutes. It imposes harsh new criminal penalties for copyright
infringement, and it requires Internet service providers to adopt a "three
strikes" policy that would shut off Internet access to average Americans that
Hollywood studios deem to be infringers.
Perhaps ACTA's most unfortunate provision is the imposition of "secondary
liability." This obscure provision of copyright law--generally disfavored by
courts--holds that a business, such as a manufacturer or Internet provider,
should be liable for a third party's copyright infringement.
The ACTA language goes far beyond current U.S. law. It contains no
protections for substantial non-infringing uses, meaning a manufacturer of an
MP3 player could be liable for copyright infringement by a single user, even if
3 million other users committed no infringement at all. This is a
business-threatening concern for the 2,000 consumer technology companies who are
members of CEA.
ACTA even allows for injunctions to prevent
"imminent" infringement should a copyright owner seek to prevent new technology
from reaching the marketplace. Not only is this wildly overbroad, but imposing
these conditions on other nations will surely backfire on American innovators.
Incidents like the recent Italian decision imposing criminal liability on Google ( GOOG - news - people )
executives for not promptly removing a customer-posted video will be all too
common under an ACTA regime.
So how could an agreement have gotten so far with so many troubling
provisions and so little public scrutiny? It happened because ACTA's proponents
have shrouded the agreement in secrecy, negotiating behind closed doors,
limiting the ability of concerned parties to provide input and avoiding open
forums that normally deal with international copyright issues
A small number of groups, including CEA, were
allowed to read ACTA's Internet-related provisions, in return for signing a
non-disclosure agreement. That means we know what's in the agreement, but are
forbidden from talking about it under penalty of law. Fortunately, in the
Internet age, it's tough to keep people in the dark for long. Some nations that
are uncomfortable with ACTA have leaked the text, and you can
read the
entire agreement here. Needless to say, all CEA's public commentary on ACTA
is based solely on these leaked drafts.
Thankfully, reason is beginning to prevail. Last month the European
Parliament rejected ACTA by a vote of 666 to 13, and many members cited the
lack of transparency in the ACTA process as the reason for their opposition.
Meanwhile, a number of U.S. senators have expressed concern about ACTA's
direction and its impact on Congress' ability to set U.S. copyright law.
The stakes are high, given ACTA's potential impact on America's most
innovative industry as well as millions of Internet
users. ACTA would change the very nature of the Internet. It would preserve
the legacy business models of the copyright industry at the expense of
innovation by imposing significant new regulations and penalties on technology
innovators and consumers.
It is time for the administration to end the secrecy, make good on its
transparency pledge and open up the ACTA process to public debate and
participation.
Gary Shapiro is president and CEO of the Consumer
Electronics Association (CEA), the U.S. trade association representing some
2,000 consumer electronics companies.
