WikiLeaks Cables Shine Light on ACTA History

La Quadrature du Net obtained exclusive access to the WikiLeaks US diplomatic cables regarding the Anti-Counterfeiting Trade Agreement (ACTA). Although they only give a partial account of the history of this secretly-negotiated agreement, these cables shed an interesting light on the coming into being of ACTA. They show the prime role of the US in the advent of this extremist imposition of violent sanctions against citizens and their fundamental rights. The cables expose the stakes and debates surrounding the participation of developing countries, as well as the evolution of the position of European Union during the negotiations.

Our analysis of the cables will probably be completed by others, but for now it seems that these US diplomatic cables do not bring anything entirely new to our understanding of ACTA. Rather, the details surrounding the history of this dangerous trade agreement reinforce the impression that ACTA is an outdated trade agreement primarily designed to export the war on sharing knowledge and culture to developing countries.

It also makes clear that although ACTA is an international agreement that could have an impact for the decades to come on the global knowledge economy, it has absolutely no democratic legitimacy. Indeed, it was drafted by a small group of unelected officials in charge of promoting the interests of rights holders in their respective countries — not legitimate representatives. 

Finally, the cables show that the European Union has been a rather weak negotiating partner, since Member States have had disagreements on how to proceed during the negotiations. Although the EU Commission has been at the front-line of public criticisms, EU national governments should also be held accountable for having negotiated ACTA behind the back of their citizens, who will suffer from ACTA’s worst provisions.

ACTA, a US project aimed at expanding extremist IPR provisions to the developing world

The concept of ACTA

In mid-2006, Stan McCoy, US chief negotiator for IPR enforcement, meets with Japanese officials and introduces the concept of ACTA. ACTA, he said, would be a “plurilateral, TRIPS-plus Anti-Counterfeiting Trade Agreement (ACTA) which would aim to set a ‘gold standard’ for IPR enforcement among a small number of like-minded countries, and which other countries might aspire to join.”¹http://wikileaks.ch/cable/2006/06/06TOKYO3567.html The US knows Japan is keen on the idea of an anti-counterfeiting agreement, and so Japanese are the first partners approached by the US.

One of the core objectives is to circumvent international organizations in charge of “intellectual property”, where maximalist countries such as the US and the EU have been facing growing opposition from developing countries. Not just WIPO and WTO, but also the OECD: Initially, the Japanese proposed to ask the OECD for some help in drafting the agreement, but US officials suggest a different process, stressing that that they have sufficient in-house expertise, and insist on avoiding any collaboration with international organizations²http://wikileaks.ch/cable/2006/06/06TOKYO3567.html.

Key priority: Swift adoption of an extremist but exportable agreement

For the US, it is important to achieve the highest standards in sanctions and ensure that ACTA’s scope is as broad as possible. American diplomats go on to tell Japan that the US Congress has “welcomed the opportunity to engage on these issues, changing laws where necessary”, and suggest that Japan also needs to “consider seriously improvements to its enforcement regime” – an idea to which the Japanese react with skepticism. For Japan, the priority is to go fast. According to a Japanese official, “the intent of the agreement is to address the IPR problems of third-nations such as China, Russia, and Brazil, not to negotiate the different interests of like-minded countries“. ACTA is to serve as ”a yardstick for measuring the market economy status of countries such as China and Russia”³http://wikileaks.ch/cable/2006/07/06TOKYO4025.html. Quite optimistically, they set the goal of negotiating ACTA “within one year.”

Among developing countries, Good Cop vs. Bad Cop

The cables show that ACTA – although negotiated between “like-minded countries” – is ultimately meant to be imposed on developing countries. Early on, the US and Japan deem necessary to recruit developing countries so as to ensure the “legitimacy” of the agreement. Jordan and Morocco are the first to be mentioned, given their acceptance of tough copyright, trademark and patents provisions in bilateral free trade agreements recently concluded with the US⁴http://wikileaks.ch/cable/2006/10/06TOKYO5805.html.

However, one key concern for the negotiators is that ACTA might appear for what it is – that is to say an agreement drafted by rich countries to be imposed on the developing world. Mexican officials are especially keen on helping out on this front. During a meeting with US counterparts, Mexicans stress “their willingness to join the Anti-Counterfeiting Trade Agreement (ACTA) negotiations and push-back against Brazilian efforts to undermine IPR in international health organizations,” according to the US account of the meeting⁵http://wikileaks.ch/cable/2007/12/07MEXICO6229.html. Brazil’s push for progressive policies on the international arena is denounced by Mexican officials, who offer to play the “good cops” by acting alongside the US to push for maximal patent and copyright standards at the global level.

The European Union, a rather weak negotiating party

Back in 2006, the US and Japan had some hesitations on how to engage with Europeans. It is first argued that it would be better to negotiate with individual countries. Their fear was that engaging directly at the EU level with the European Commission would bring sensitive issues on the table, like Geographic indications, which US officials term as a “non-starter”⁶http://wikileaks.ch/cable/2006/10/06TOKYO5805.html.

The first cable to mention a meeting between US and European officials is dated December 1st, 2006, and originates from the US embassy in Rome⁷http://wikileaks.ch/cable/2006/10/06TOKYO5805.html. US diplomats explain that Italy is interested in ACTA, but say that Italian officials stressed Italy’s “commitment to multilateral organizations, such as WIPO, the EU, and the G-8, and emphasized that the government of Italy must evaluate taking steps outside these institutions very carefully.”⁸They met with Ministry of foreign affairs Deputy Director for Economic Affairs, Mr. Spinetti, and with Undersecretary at the Economic Development Ministry Mr. Gianni.

Internal disagreements over competencies

Subsequent cables point to the fact that Europeans are divided over ACTA, a division which seems to weaken their negotiating position. In particular, they disagree over the respective role of the EU Commission and Member States. In late 2007, Italian officials express their confusion and annoyance when they hear that the EU Commission was presented with a joint US-Japan ACTA proposal. They apparently hoped that the US would engage first and foremost with a few Member states, rather than with the EU as a whole. Italians point out that there was a “significant gap between the EU Commission views and those of several members states (including Italy) on how ACTA competencies should be allocated.”⁹http://wikileaks.ch/cable/2007/02/07ROME290.html

On the contrary, Portugal is favoring a EU approach. In June 2007, during Portugal’s Presidency of the EU Council, the Prime Minister’s Economic Adviser tells to US officials that his government is happy with the Commission’s leadership on the issue, even though Portugal recognizes that Member States will eventually have to be brought into the negotiations as progress is made, in order to resolve competency issues over the criminal chapter.¹⁰http://wikileaks.ch/cable/2007/09/07LISBON2288.html

This lack of clarity surrounding the competence of EU institutions versus that of Member States to negotiate ACTA ends up causing significant delays in the negotiation process. In mid-2008, Fabrizio Mazza, in charge of ACTA at the Italian ministry of Foreign Affairs, warns US officials that “European countries are likely to ask for a slowdown in the negotiations” because of opposition to the EU Commission’s involvement in the negotiations of the criminal chapter of ACTA. At issue are also disagreements over the absence of geographical indications from the agreement¹¹http://wikileaks.ch//cable/2008/11/08ROME1337.html. 

Tensions regarding the inclusion of Geographical Indications

Europeans have also strong concerns with the scope of ACTA. In the same cable, Mazza also points out that “ACTA is a de facto ‘TRIPS Plus’ in the view of many European nations, yet ACTA does not address geographic indications, which is addressed in TRIPS. He said it’s ‘only a matter of time’ before an European delegation points out that this upgrade to TRIPS addresses the key American issues of piracy and counterfeiting but ignores the key European issue of geographical indications. He indicated that this omission would not be a deal breaker, but would slow negotiations. In the end, Europeans did not obtain satisfaction on this crucial point, since ACTA falls short of offering a comprehensive protection of geographical indications.

ACTA’s legitimacy jeopardized by lack of transparency

Finally, Europeans also take issue with the confidentiality of the agreement. One concern is strategic: the EU Commission is concerned that the US negotiates ACTA in close consultation with US industry, while the EU does not have the same possibility to share the content under discussion in the negotiations¹². But the issue of transparency is becoming a real problem for the Europeans, as public criticisms over ACTA negotiations increase. In late 2009, after the leak of the US plan to introduce “three strikes” schemes in the Internet chapter of ACTA, a Swedish official involved in the negotiation insists that “the secrecy around the negotiations has led to the legitimacy of the whole process being questioned.”¹²http://wikileaks.ch/cable/2009/11/09STOCKHOLM736.html

The history of ACTA as exposed by these US diplomatic cables shows how an opaque and illegitimate process has led to ill-founded and unbalanced repressive provisions. As democratic representatives start debating over the ratification of ACTA, they should reject it so as to protect democratic values and the rule of law.