In the wake of the Stop Online Piracy Act/PROTECT IP Act (collectively, SOPA) Web protest, some commentators have pointed out that Anti Counterfeiting Trade Agreement (ACTA) is even worse in both substance and procedure. The secretive process through which ACTA was negotiated is now well known, at least amongst those paying attention. Indeed, the very secrecy of the process has made paying attention both difficult to do and critically important, as ACTA seeks to create a new international framework for combating piracy. SOPA, in a profound way, has shown the value of transparency, albeit imperfect, when lawmakers are faced with pervasive and poorly understood technology like the Internet, and a new problem of scale like the distribution of intellectual property (IP) on the borderless Internet. The public’s access to actual texts of SOPA, combined with a relatively simple process for offering actual input about the bills, will hopefully create better law by allowing knowledgeable parties to explain technologies that are not well understood. No such opportunity existed with ACTA.
Enter the Trans Pacific Partnership Agreement (TPP), the most recent of the run of international intellectual property lawmaking in the last few years. Few have likely heard of TPP, because it is also being negotiated largely in secret. The word “largely” is key, because, as was the case with ACTA, TPP documents have been leaked, creating yet another international IP lawmaking process where issues, both imagined and real, are kicked around amongst interested parties who don’t have a meaningful way to offer real-time and useful input to the negotiators. TPP is following generally the ACTA model, and further underscoring the value of transparency when compared to the more transparent SOPA process.
Why are we at this point (again), and what can be done about it? Interestingly, the negotiations of ACTA and TPP, as well as the discussions surrounding SOPA, have elevated intellectual property issues to the level of national security concerns and have been implemented with significant corporate involvement and minimal public involvement. The focus of my current research is the impact of national security concerns on intellectual property law creation, particularly given a widespread lack of understanding about the technology that creates the Internet, and proposed ways to address its excesses. At a minimum, and despite a recent trend to downplay the value of transparency, the combined on-going experience of ACTA, SOPA and TPP illustrate that transparency can have real potential to improve law for all interested parties. The challenge, and my current focus, is how to implement such a system in the face of national security concerns and widely misunderstood technology. More to come!