As Techdirt revealed a couple of days ago, one reason why the European Commission decided to refer ACTA to the European Court of Justice was a fear that another SOPA disaster was in the offing. It's a little too early to be sure, but we may be seeing the first signs that the equally problematic TPP agreement is also running into problems because of heightened sensitivity to key issues in the wake of the Net-based revolt against SOPA.

Here's a report by Sean Flynn, on the latest round of TPP negotiations, held recently in Australia:

Contrasting with apparent progress on some other chapters, which were declared “on track” by negotiators, the Trans-Pacific Partnership Agreement’s intellectual property chapter appears to have stalled in Melbourne. According to some sources, the 10 day negotiation yielded no meaningful progress on the intellectual property chapter. This is as some of the most controversial aspects of the U.S. proposal, including internet service liability and the “May 2007” access to medicines issues, came to the table.

The ISP liability issue is the familiar one of making intermediaries responsible for what their customers do. The result of bringing in laws to this effect would be to push ISPs to monitor their users and to block content in order to minimize the risk of being sued. TPP may not require surveillance and censorship, but those would be its inevitable consequences.

What's new, though, is the growing general concern about TPP's impact on access to medicines, particularly the low-cost generics that are important for many countries in the Pacific region. KEI's Krista Cox wrote about this in her summary of the Melbourne meeting:

The afternoon session [of the TPP Stakeholder Forum] began with eight representatives of the generic pharmaceutical industry giving strong statements in opposition to the US "access window" text, opposing in particular the provisions related to patent term extensions, patent linkage, and exclusive rights over test data. These representatives noted that the US proposal would hinder access to affordable generic medicines

Cox's report also makes clear that the TPP negotiators have still not heeded SOPA's -- and ACTA's -- lessons about the importance of real transparency:

The first question came in the form of request for greater transparency, including the release of the text, in order to permit the general public to be part of the process. The Australian chief negotiator stated that the stakeholder forum provides the primary way for stakeholders to participate and it is common practice not to release texts during negotiations of free trade agreements. He suggested that releasing the text would not be feasible because "nothing is agreed until it is agreed."

Of course, that's absurd: many members of the public are just as capable as reading a text with multiple, possibly conflicting, options as TPP negotiators are, and to pretend otherwise is insulting, to say the least. The continuing absence of any officially-released draft (we have some leaks) means that the TPP negotiation process is still less transparent than ACTA was -- and will remain that way even after the treaty is concluded.

The Australian chief negotiator may think it is "common practice not to release texts during negotiations of free trade agreements", but that was before SOPA. A decade ago, sharing drafts and soliciting feedback from the general public would have been difficult. Today, it's easy. After SOPA, it's unacceptable not to.

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The ACTA negotiators were pretty insistent that the last round of negotiations would be the last round -- and came out of that round with claims of a "near final" document, though many of us noted that there appeared to be substantial areas of disagreement. Since then, many people have noted significant legal issues with the current document. So what's an ACTA negotiator to do? Well, not set up another round of negotiatons, but just get folks together in something that kinda sorta sounds like another round of negotiations in lovely Sydney, Australia and just refer to it as a "legal scrub," rather than an actual negotiations (found via Glyn Moody). The document also covers the various issues that still need to be worked out -- and it certainly seems like (a) there's a lot and (b) some of them are very substantial in terms of their potential impact. But, it's not like the negotiators have any plans whatsoever to allow the public and actual stakeholders to take part in any of this discussion. Why, that might involve having to actually pay attention to what those folks have to say.

We've already covered how the EU Parliament is skeptical of ACTA. Ditto the Mexican Senate. In the US, which will undoubtedly sign the agreement, at least some politicians are asking questions about the document. Now news is coming out in a few other countries as well. Down in Australia, unlike in the US, they're planning to go through a full scrutiny process involving the Parliament and the public. On the flipside, it sounds like Singapore can't sign the document fast enough.

Of course, what may be most interesting is how countries who are not a part of the negotiations feel about this. Many people feel that the whole ACTA process was set up outside of WIPO and the WTO in order to avoid having to deal with the BRIC countries (Brazil, Russia, India and China), which are all developing rapidly, and have a very different viewpoint on intellectual property than the countries involved in the negotiations. So, it's interesting to see that Brazil has already slammed the agreement (Google translation from the original Portuguese). A Brazilian official said that the agreement was not legitimate, negotiated by a closed group without considering all of the issues at play.

ACTA negotiators have said that they hoped, after their own countries agreed to sign onto ACTA, that the BRIC countries would follow down the road. Of course, if they wanted that to happen, perhaps they should have asked them to join the discussions. But, what would that accomplish, since the goal appears to have been to keep many stakeholders out of the negotiations, rather than being inclusive.

All last week, what negotiators hoped to be the "final" round of negotiations on ACTA were taking place in Tokyo. It was odd that little was heard from the negotiations, but late Friday, word came out that an agreement was still "weeks" away, as there were still substantial differences to be worked out. However, then an announcement was released suggesting that the deal is almost done as "participants in the negotiations constructively resolved nearly all substantive issues and produced a consolidated and largely finalized text of the proposed agreement."

Of course, in typical ACTA fashion, the statement itself was blatantly dishonest as well. It tried to claim that "all stakeholders" were heard from with the following sentence:

During the week, the Government of Japan hosted informal meetings with stakeholders, including representatives from non-governmental organizations (NGOs) and business leaders, and the participants in the ACTA negotiating round.

Except, as we detailed, that's not being intellectually honest. For the past month, negotiators had been telling the NGOs that the meetings were starting September 27th. Then, they suddenly announced that it would actually start September 23rd, and the NGO meeting would be on the 24th. Except, by the time they announced it, it was too late for most representatives to get to Japan in time (many had booked flights for the following week), and the Japanese government refused to change the time of the meeting. Then, finally, when the meeting was held and only 2 or 3 NGOs were actually able to make it, it wasn't so much a "meeting" as it was lunch -- and, even then, all the ACTA negotiators sat together, leaving no room for the NGOs. If that's how the negotiators "meet with stakeholders," who represent consumer rights, you can get a sense of how much ACTA cares about consumers.

Either way, the negotiators are promising to release a final text shortly, in take-it-or-leave-it fashion. It would be nice if countries were smart enough to "leave it," but I'm sure that there's too much lobbying money on the table for most politicians to stand up for what's right here.

While it's not clear that it's done much, at least at the last few ACTA negotiation meetings, time has been set aside for various "civil society groups" to meet with the negotiators and ask some questions. Apparently, the ACTA negotiators would rather not do that anymore. Sean Flynn has detailed just how difficult the negotiators made it for such groups to attend the latest meeting in Tokyo. Everyone knew that the meeting was happening in Tokyo, but the rumors were that it started next week. Nope. At the last minute, it came out that they actually start on Thursday of this week -- and that info wasn't released publicly until it was effectively too late for most to get a ticket to get to Japan:

You can't book a plane trip if you don't when to book it for. It takes 15- 20 hours to fly to Japan from the east coast of the U.S. and you land a day after you take off. So U.S. groups that want to attend the meeting at the start of it -- you needed to buy your ticket when the announcement hit after 3pm yesterday and be on a plane now. If you want to go to the one hour civil society meeting, you need to leave by tomorrow. Those that have bought a ticket likely have one for next week -- when everyone thought the negotiation would be. So they will miss the civil society meeting.

Figuring out that the announcement of the date of the meeting was made yesterday was no easy feat. Two individuals (myself and Malini Aisola from KEI) inquiring with USTR yesterday about the meeting were first told that they had to contact the Japanese Embassy for information on the meeting. We were given the name of Mr. Kazuyuki Takimi, First Secretary, Economic Section, Embassy of Japan, Kazuyuki.Takimi@mofa.go.jp, 202-238-6729.

Mr. Takimi said he did not know when the meeting was going to be held because he had not spoken to "Tokyo" lately. He said he recalled it might be meeting on September 23, but could not confirm. He said he had no agenda and no knowledge of any civil society meeting opportunity.

Nice of them, huh? Flynn also notes that while an agenda has been posted on the USTR website, it's almost impossible to find:

If you want to laugh -- go to that site and try to find the agenda. It is not in any of the press releases on the top or bottom of the site. It is not the prominent link on the left for the agenda to the 5th Round -- that was in 1999. It is not in the upper right hand or left hand boxes where the recent announcements are. Still looking? It starts with the 372nd word in the background essay in the middle page.

Of course, if you do find the agenda (pdf), you discover it's nothing substantial at all. It basically just says they'll be meeting pretty much every day.

Considering that almost everyone agrees the Tokyo meetings are intended to "finalize" the (still secret) agreement, it looks like ACTA maybe going out the same way it came into life: in near total secrecy, without involving rather important stakeholders representing the people ACTA will impact the most. What a disgraceful process.

Following Google and Verizon's announced framework for net neutrality (a framework that has no real meaning), the FCC announced that it was no longer holding closed door meetings with industry lobbyists, as they were not fostering the "robust framework to preserve the openness and freedom of the internet." No matter for those lobbyists. They'll just gather elsewhere, without the FCC and continue to hash out plans.

I'm reminded of Adam Smith's famous quote:

"People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices."

But, really, I'm trying to figure out what the purpose of these meetings really could be. After all, these companies coming to some form of an agreement doesn't mean a damn thing if the FCC decides to push forward with its own plans. So, the idea must be that some sort of voluntary industry agreement could mean that the FCC won't make certain rules official, but again that seems backwards. The industry shouldn't be colluding to set up rules -- especially without anyone representing consumers' interests (remember them?). Rather than all these industry lobbyists hashing out some sort of agreement that might not mean anything, shouldn't we just focus on making sure there's enough competition in the market that keeps the most egregious possible actions unthinkable by these companies? Is that so much to ask for?

The USTR keeps claiming that it's being as transparent as possible when it comes to ACTA negotiations, but there's simply no evidence to support that at all. It worked hard to keep ACTA secret for as long as possible, and used transparency as a bargaining chip at the last ACTA negotiations (which is why no draft was released -- though it was leaked). For a while now, there have been reports that there was to be a meeting in Washington DC next week between US and EU ACTA negotiators to try to hash out their differences -- which are apparently a key hurdle at this point.

However, the whole thing has been shrouded in secrecy. The USTR hasn't even said where the meetings will be held, who's attending or what the agenda is -- things that most other countries hosting these negotiations have released at least a week in advance. The latest report is that, contrary to earlier claims, this meeting will include more than just EU and US negotiators, so it's sounding more like a full negotiation. And yet... no one's really sure, because the supposedly "transparent" USTR isn't saying a word. Of course, as with all things ACTA, the more the USTR stays quiet, the more things leak: so a proposed agenda has leaked, and it certainly looks like a pretty thorough negotiation, rather than just the proposed "hash out EU/US differences" sort of thing. But, it's worth noting that the very last item on the list of things to be discussed (well, before "press release") is "transparency." I guess that's the USTR's version of transparency: don't tell anyone anything, but talk about transparency at the meeting.

So, we now know for certain that the ACTA negotiators' promise of "transparency" over negotiations was an outright lie. They fought it every step of the way, falsely claiming that if the draft were public, some members would leave the table. It was only after a pretty massive smack down from the EU Parliament and the fact that the draft was already leaked that negotiators finally agreed to release a draft that left out lots of pertinent information.

But what was most interesting is how negotiators have acted since then. First, they pretended that the released draft proved all the complaints about ACTA were unfounded, but the details showed something quite different, which has even supporters of stronger intellectual property crying foul.

And how have negotiators responded? Rather than living up to their promises of transparency, they've gone back into secrecy mode. They admitted that the draft release was a one time deal, which was made even clearer when the last meetings concluded without a release of the new draft -- and not even a mention of the fact that they wouldn't be releasing it.

Of course, this is the internet age, and keeping stuff secret tends to backfire badly. Via Michael Geist we've learned that the latest ACTA draft has been leaked once again. You can read it below: Clearly, some of the parties involved in the negotiations agree that the drafts should be public, and the more some (we've heard it's mainly the US negotiators) want to keep the document secret, the more ridiculous they look. What's even more ridiculous, of course, is how the US negotiators keep denying reality. They claim they're being transparent, when they're not. They claim that the release answered all questions, when it clearly did not. They claim that the concerns of various groups are unfounded, but have failed to respond to their questions. It's as if they think that as long as they keep saying stuff, someone somewhere will believe them. That's not quite how it works.

The EU Parliament made it quite clear back in March that it was not happy with what EU negotiators were pushing for within ACTA, and also not happy about the serious lack of transparency in the process. In response, ACTA negotiators finally released the text, but hinted that this was a one time deal, and now we're back to secrecy. Indeed, after the latest negotiations, no new text was released. Hell, it wasn't even mentioned.

Now, even more disappointing are reports that the EU negotiators have gone to discuss the matter with the EU Parliament, but would only do so in secret, forbidding those in attendance from telling anyone what was discussed. In other words, for all the talk of openness and transparency, it appears it was all a bluff. They showed one (incomplete) draft, and went right back to secrecy. It's as if they thought that people asking for transparency could be fooled by a quick glimpse.

It turns out that there were actually two separate meetings held for MEPs, with the first one being secret, and the second one being open. Some of what happened in that second meeting is now being reported in the press, with the EU negotiators insisting they won't fall for "US hypocrisy," within ACTA (whatever that means) -- but refusing calls by MEPs to make the draft public again. It's still not at all clear what was said in the first meeting.

Earlier this year, in discussing ACTA, some observers noted that it was quite telling that those involved in the ACTA negotiations were clearly routing around WIPO, the organization that was already in place to deal with those kinds of discussions. The explanation was that the negotiators were upset that the copyright holders no longer had full control over the WIPO agenda, and WIPO had dared to let consumer rights groups into the discussion. So the purpose of ACTA was to get around having to include such groups. It appears that WIPO, itself, is quite concerned about what's going on with ACTA, suggesting that he's worried that these countries no longer believe the WIPO process works.

"A number of countries feel [there is] an important area of public policy they are not able to address in a multilateral forum, and so have gone outside the multilateral framework to satisfy their desire for creating some form of 'international' cooperation," Gurry told Intellectual Property Watch in an interview last week. "That's the challenge, for us. And whether it concerns enforcement, ACTA, or any other area, that, on the whole, is a bad development for a multilateral agency, that member states start to do things outside."

I'd argue that he's being a bit too hard on himself. It's not that the WIPO process doesn't work (though, I do have some problems with the WIPO process as well), but that the copyright holders were upset that they no longer had near unilateral control over the process. It wasn't that they felt WIPO couldn't address the issues, but that it would be much harder to get them addressed in the way industry folks wanted.

As part of the discussion, he also pointed to the recent fight over helping the blind access more content through exceptions in copyright law -- an WIPO process that has been stymied by industry interests who don't like to see any new exceptions applied to copyright. To WIPO, that gridlock on such an obviously reasonable solution is worrying:

The frustration it has caused is a consequence of practical issues not being addressed, he said, citing recent difficult discussions in the Standing Committee on Copyrights and Related Rights on increased access for visually impaired persons. "Can anyone not subscribe to that principle, as a general rule?" he asked, with visually impaired readers only obtaining access to about five percent of all published work in reasonable time.

"Can anyone stand up and say that they should not have more [access], that we should not do something about it?" It is such an obvious question, he said "but we are not getting an agreement" although the last meeting showed genuine involvement of member countries.

If anything, what this demonstrates is not any problems with the WIPO process, but a group of organizations so used to getting their way on copyright issues so totally and completely, that they're not used to facing people questioning the actual impact of the regulations and international agreements they push. When that happened, they decided to take their ball and go home to play with only their friends. That's what ACTA is really about.