David P. Reed reed.com writes:

A tactic adopted recently to bypass Congress in the US was taken by
WIPO's attempt to negotiate a treaty creating a new "X-cast"  (broadcast
and webcast) synthetic property right.   This property right does not
fit in the US Constitution's terms "copyright" and "patent".

Clever lawyers understand that any treaty becomes US law when it is
ratified.   Such ratification is (when not contested) far more easily
accomplished than (say) introducing a bill in the House or Senate, then
getting both houses to formulate compromises.

This sure looks like another example of the "treaty route" to getting a
US law that would not be passed in Congress.

The X-cast right was blocked by exposure of the tactic.

New synthetic inventions of property rights by self-interested parties
though a legal backdoor are abhorrent.   New versions of copyright
through the same legal backdoor seem almost as bad.



Proposed secret copyright deal takes aim at iPods, providers
 Vito Pilieci
 The Ottawa Citizen
 Saturday, May 24, 2008


 The Canadian government is secretly negotiating an agreement to revamp
 international copyright laws which could make information on iPods,
 laptops and other personal electronic devices illegal and greatly
 increase the difficulty of travelling with such devices.

 The agreement could also impose strict regulations on Internet service
 providers, forcing those companies to hand over customer information
 without a court order.

 Called the Anti-Counterfeiting Trade Agreement (ACTA), the new plan
 would see Canada join other countries, including the United States and
 members of the European Union, to form an international coalition
 against copyright infringement.

 Details of the agreement, which is expected to be tabled at July's
 meeting of G8 nations in Tokyo, were leaked on the Internet yesterday.

 The agreement is being structured much like the North American Free
 Trade Agreement, except it would create rules and regulations
 regarding private copying and copyright laws. Federal trade agreements
 do not require parliamentary approval.

 The agreement would create an international regulator that would turn
 border guards and other public security personnel into copyright
 police. The security officials would be charged with checking laptops,
 iPods and even cellular phones for content that "infringes" on
 copyright laws, such as ripped CDs and movies.

 The guards would also be responsible for determining which content
 infringes on copyright laws.

 The agreement also proposes that any content copied from a DVD or
 digital video recorder be open for scrutiny by officials -- even if
 the content was copied legally.

 "If Hollywood could order intellectual property laws for Christmas,
 what would they look like? This is pretty close," said David Fewer,
 staff counsel at the University of Ottawa's Canadian Internet Policy
 and Public Interest Clinic.

 "The process on ACTA so far has been cloak and dagger. This certainly
 raises concerns."

 The leaked ACTA document states officials should be given the
 "authority to take action against infringers (i.e., authority to act
 without complaint by rights holders)".

 Anyone found with infringing content in their possession would be open
 to a fine. They may also have their device confiscated or destroyed,
 according to the four-page document.

 The proposal includes "civil enforcement" measures which would give
 security personnel the "authority to order ex parte searches" (without
 a lawyer present) "and other preliminary measures."

 In Canada, border guards already perform random searches of laptops at
 airports to check for child pornography. ACTA would expand the role of
 those guards.

 On top of these relatively small-scale enforcement efforts, ACTA also
 proposes imposing new sanctions on Internet service providers. It
 would force providers to hand over personal information pertaining to
 "claimed infringement" or "alleged infringers" -- users who may be
 transmitting or sharing copyrighted content over the Internet.

 Currently, rights holders must collect evidence to prove someone is
 sharing copyrighted material over the Internet. That evidence is then
 presented to a judge who can issue a court order telling the Internet
 service provider to identify the customer.

 Mr. Fewer has been following the progress of ACTA and has exhausted
 every avenue at his disposal to gain insight into its details. He said
 yesterday's leak of the "discussion paper" which outlines the
 priorities of the agreement is the first glimpse anyone has had into
 ACTA.

 "We knew this existed, we filed an Access to Information request for
 this, but all it provided us with was the title. All the rest of it
 was blacked out," he said.

 "Those negotiations can take place behind closed doors. At the end of
 the day, we may be provided with something that has been negotiated
 which is a fait accompli in which civil society gets no opportunity to
 critique it."

 Mr. Fewer expressed particular concern about one area of the proposal
 that calls for ACTA to operate outside of accepted international
 forums such as the World Trade Organization, the World Intellectual
 Property Organization or the United Nations.

 The document proposes that ACTA create its own governing body and be
 overseen by a committee made up of representatives from member
 nations. Organizing its own governing body would make ACTA
 unaccountable to any existing international trade organization.

 "This initiative is unprecedented," he said.

 The paper was leaked online by Sunshine Media, the company that runs
 the Wikileaks.org website -- a whistleblowing site created to help
 circulate secret documents.

 In October, David Emerson, minister of International Trade, announced
 that Canada would take part in ACTA's creation. The initiative was
 originally aimed at stopping large-scale piracy, such as printing
 operations that make and sell thousands of copies of movies that are
 still showing in theatres.

 "We are seeking to counter global piracy and counterfeiting more
 effectively," Mr. Emerson said at the time. "This government is
 working both at home and internationally to protect the intellectual
 property rights of Canadian artists, creators, inventors and investors."

 The document is reported to have been drafted by the Office of the
 United States Trade Representative. A spokeswoman with the office
 refused to comment on the document.

 Michael Geist, Canada research chair of Internet and E-commerce law at
 the University of Ottawa and expert on Canadian copyright law,
 criticized the government for advancing ACTA with little public
 consultation.

 He said documents detailing ACTA's plans would not need to be leaked
 online if the process were transparent.

 "That's what happens when you conduct all of this behind closed
 doors," he said. "The lack of consultation, the secrecy behind it and
 the speculation that this will be concluded within a matter of months
 without any real public input is deeply troubling."

 The Department of International Trade said they would not comment on
 the document.