In the face of widespread criticism of the lack of ACTA transparency, participating governments and music industry lobbyists have claimed that the transparency issue is much ado about nothing. As governments seek to keep relevant information secret, those same governments released a joint statement last week arguing that "it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation."

It is important to emphatically state that this is simply not the case for many multilateral agreements and the activities of international organizations that typically serve as the forum for global agreement discussions. U.S. NGO groups have made a strong case for how ACTA's lack of transparency is out-of-step with many other global norm setting exercises. With regard to international fora, they note that the WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law, and an assortment of other conventions have all been far more open than ACTA. For example, it notes that the WIPO Internet treaties, which offer the closest substantive parallel to the ACTA Internet provisions, were by comparison very transparent:

The two WIPO Internet Treaties (WCT and WPPT) were negotiated in a completely open meeting at the Geneva Convention Center. The public was allowed to attend without accreditation. The draft texts for the WCT and the WPPT were public, and the U.S. government requested comments on the draft texts, which were available, among other places, from the U.S. Copyright Office.

Two other documents offer similar reviews of the transparency of negotiation documents and opportunities for public participation. The inescapable conclusion is that the ACTA approach is hardly standard. Rather, it represents a major shift toward greater secrecy in the negotiation of international treaties on intellectual property in an obvious attempt to avoid public participation and scrutiny.

Michael Geist is a law professor and the Canada Research Chair in Internet and e-commerce law at the University of Ottawa.