In November, I filed a couple of Access to Information Act requests with the Canadian Trade Department trying to shine some light on the negotiations for the Anti-Counterfeiting Trade Agreement (ACTA). ACTA in a nutshell: negotiations for a multilateral trade agreement with alarming implications for copyright reform based on leaked documents of an unusually secretive process (more info). In December, I wrote about Trade taking a 6 month extension above and beyond the 30 days that the Act permits them to answer my request. However, they did respond to one of the requests only a couple weeks later. They were able to respond so quickly because they released nothing to me.
The request:
The most recent draft text of the Anti-Counterfeiting Trade Agreement (ACTA), as well as a draft dated September or October 2009, to match the draft which the USTR released for consultation to several American corporations and individuals in August and September 2009.
The response:
We regret to inform you that the records you requested are all withheld pursuant to sections 13(1)(a) and 15(1)-International of the Act and therefore cannot be released to you.
I mulled this over for a while debating the next step. Given the hints that ACTA is being used to circumvent the recent public consultation in Canada on copyright reform, I decided to file a complaint with the Information Commissioner. I’m making a “public interest” argument for the documents to be disclosed. Unfortunately, it appears that our Act contains no explicit public interest override (unlike most of the Commonwealth nations), so hopefully there is some legal precedent for applying it here. Interestingly, the previous Information Commissioner proposed new legislation that would add such an override (more info). Forgive me a comment on our current Government, but it’s noteworthy that they haven’t implemented any of his suggestions to improve government transparency despite that goal being of their key election planks.
My complaint:
On December 15, DFAIT responded that all requested records were being withheld under 13(1)(a) and 15(1) of the Act. However, the records should have been released for the following reasons:
1. The Canadian position is for greater transparency. In a presentation on April 6, 2009, officials at DFAIT confirmed that they favour transparency in the ACTA process [1]. Disclosing documents requested under the Act would improve transparency in the process; withholding documents makes the process more opaque.
2. During question period on December 1, 2009, Industry Minister Tony Clement referred MP Charlie Angus to a university professor’s website to learn more about ACTA [2]. It is not the job of academics to ensure government transparency, and Members of Parliament should not need to rely on leaked documents. How can there be an effective government if opposition parties get their information from second-hand leaked documents? The public interest is being harmed by this secrecy. Disclosing the requested documents is in the public interest as disclosure would allow the Opposition access to information necessary to fulfil its role in Parliament.
3. Foreign governments party to the negotiation are releasing similar documents. The Council of the European Union released records under their sunshine legislation with the justification “Given the current agreed approach on transparency within ACTA the UK agrees with the Council’s response to the FOI access to documents request […] More broadly with respect to ACTA the UK considers that transparency is crucial to ensure the legitimacy of the agreement and to stop the spread of rumours. We believe that the lack of transparency is unhelpful and do not believe that it is in the public interest.” [3]
Additionally, the United States has disclosed the requested records to over 42 individuals and organizations [4]. As other governments are disclosing similar documents, there is no justification for DFAIT to withhold the requested records.
4. Incomplete copies of ACTA and other working documents have been leaked, in both May 2008 [5] and November 2009 [6]. Key stakeholders believe that disclosure is in the public interest; enough so that they are leaking the documents. However, leaked documents provide at best a muddled and incomplete picture. Disclosing the requested documents will identify areas where the leaked documents are misleading or missing important details, and provide a complete picture for Canadians to understand what its government is doing.
5. The ACTA negotiations are specifically being held to circumvent transparent international forums like WIPO and to bypass Canadian public will expressed in the grassroots resistance to Bill C-61 and during 2009′s copyright consultation. Allowing the Government to forum shop and move to a less transparent and more secretive process is counter to the express public will on this topic. Disclosing the requested documents will allow the public to continue to comment meaningfully on copyright reform.
6. Other similar international agreements on intellectual property have been negotiated in a transparent manner. There is no reason for the ACTA negotiations to be held in secrecy when, for example, the two WIPO Internet Treaties were negotiated in the open in Geneva [7]. Withholding the requested documents is neither typical nor necessary in intellectual property negotiations, and as such they should be disclosed.
7. Public interest groups, academics, corporations, individuals, and government representatives are all requesting greater transparency. Disclosing the requested records would encourage that transparency and be in the public interest, not just for Canada but worldwide.
A short-list of calls for increased transparency:
- Canadian MP Charlie Angus
- Canadian New Democratic Party [NDP]
- Canadian Internet Policy and Public Interest Clinic, University of Ottawa
- US Congressman Mike Doyle (D-Pa)
- US Senator Ron Wyden (D-Ore)
- New Zealand Labour party (Official Opposition) [NZL]
- WIPO Director General Francis Gurry [WIPO]
- James Love, Knowledge Ecology International
- Gigi Sohn, Public Knowledge
- Electronic Frontier Foundation (EFF)
Conclusion
There is a compelling public interest case for the documents to be released and little rationale for withholding them. Disclosure would serve the Government’s calls for increased transparency in the ACTA negotiation process and is consistent with historic IP negotiations and the disclosures made by other governments party to the negotiations. The requested records should be disclosed.
IP
access to information, acta, copyright
