The final text of the controversial Anti-Counterfeiting Trade Agreement (ACTA) has been agreed upon following a flurry of phone calls and emails across Monday night Australian time. It’s a win for us. Better protection for exports, but we don’t have to change a thing our end.
ACTA is about protecting intellectual property (IP) from counterfeiting and copyright infringement — everything from trademarks to patents, fashion to films to foodstuffs. Mostly the negotiators saw this as an extension of the TRIPS Agreement of 1994, the aim being to create a minimum standard of enforcement that signatory nations would implement in their own laws in their own way.
ACTA’s controversy lay in extending detection and enforcement into the digital realm.
Since ACTA is a trade agreement, negotiations took place behind closed doors, where the wording of cheese labels can be weighed against a million tonnes of coal. But along the way, discussion papers representing participants’ ambit claims were leaked to WikiLeaks and elsewhere, often incorrectly billed as drafts of the treaty itself.
Some of the ideas were certainly draconian. Random border searches of laptops, MP3 players and mobile phones for illegally copied movies and music. An international agency to force internet service providers (ISPs) to cough up details of alleged copyright infringers. Mandatory “three strikes and you’re off the internet” laws for repeat offenders.
They were just ideas. Negotiators were nowhere near converging on an agreed text.
But with three-strikes laws passed in France and in progress in New Zealand and elsewhere … With the Australian Federation Against Copyright Theft (AFACT) case against ISP iiNet making its way through the Federal Court … With well-presented concerns from lobbyists and academics including NYU anthropology professor Gabriella Coleman … Against that background, and with an official information vacuum, it was easy for people to fear the worst, despite DFAT denials.
But in the end none of that became part of ACTA. Even since the draft released in October there have been significant changes.
In the digital realm, the fight against copyright infringement only spreads the net wider than the primary infringer — say to an ISP — if there is “widespread” distribution. Enforcement must be done “in a manner that avoids the creation of barriers to legitimate activity” — effectively ruling out three-strikes laws — and “preserves fundamental principles such as freedom of expression, fair process, and privacy”.
Treaty signatories may exclude from their border controls “small quantities of goods of a non-commercial nature contained in travellers’ personal luggage”.
The Internet Industry Association and AFACT have welcomed the text.
The toned-down ACTA now sets a standard for protecting intellectual property that Australia’s existing laws already meet. Our negotiators are chuffed.
That doesn’t mean parliament couldn’t introduce tougher laws as a result of lobbying by the IP industries. But if that happens, it’s nothing to do with ACTA.
The final text published Monday (Tuesday Australian time) concludes three years of negotiations between 37 countries: Australia, Canada, the EU representing 27 member states, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the US.
The text now goes through “legal verification” in Sydney from November 30 — a technical process to ensure it conforms to treaty drafting standards, but no substantive changes can now be made. It then goes to parliament’s Joint Standing Committee on Treaties (JSCOT), possibly with a public consultations round, before the government makes a final decision on ratification. That process is likely to take us to mid-2011.
You’ve neglected the two main objections: negotiators have seriously overreached their brief, I.P issues typically belong with TRIPS and WIPO; copies of the draft Treaty were only available to the people most effected due to leaks, not due to the negotiation process. Both of these factors contributed to the fear that ACTA was very much an attempt for I.P profit-makers to advance their claims over the interests of all other users of the I.P system.
Your article says that the drafts were “just ideas. Negotiators were nowhere near … an agreed text”. With respect, some of us saw the process more as becoming less tilted towards profit-making rights-holders only after leaks of the drafts caused some pointed questioning of the EU negotiators by MEPs. I doubt such changes would have been made without parliamentary overview, and the lack of overview of our ACTA negotiators by our Commonwealth Parliament is a matter of concern.
The Treaty furthers the criminalisation of unauthorised I.P use, despite the harm of unauthorised I.P use being entirely economic.
The Treaty places more obligations on Australian ISPs to disclose information about its customers to third parties. The Treaty does not place similar obligations as are placed on ISPs for that third party to limit the further distribution or to limit other misuse of that information. Again, bias towards the profit-making rights-holders is clear. I.P users have heavy penalties for distributing data, I.P rights holders do not.
Civil actions will have a table of predetermined damages, making the current trawling activities by some rights holder groups much more profitable as the rights holder will not need to demonstrate loss. We’ve yet to see any of this in Australia, but ACTA opens the door to trawling operations as a profit centre for collecting societies. This importation 0f the negative features of other countries’ I.P systems seems to be a theme of Australia’s participation in international I.P treaties.
It is unclear what changes to our Copyright Act will be required to meet ACTA. Discussion of ACTA would be greatly enhanced by our negotiators releasing their proposed changes, rather than those changes appearing years later in a parliamentary bill.
(Disclaimer: I’ve got interests on all sides of the I.P system. Past employers have patented my innovations for their profit, current employers have given my innovations away for the common good. I have ghost written books for money, and written books which are free. I’ve written proprietary software and free software. In short, I am hopelessly conflicted. That’s pretty typical for creative people, and ACTA doesn’t really reflect that reality at all so much as the view from the executive’s desk at a “content company”.)