We've long opposed the USA's attempts to rewrite our copyright and other intellectual property laws through trade deals. Amongst other activities:
- We called for New Zealand to withdraw from ACTA and said that New Zealanders should get to decide their own laws.
- We participated in PublicACTA and the writing of the Wellington Declaration.
- We pointed out that negotiating ACTA and the TPP in secret is anti-democratic and leads to a poorer quality agreement.
We're now pleased to endorse the goals of the Fair Deal campaign:
The Fair Deal campaign is about keeping the Trans Pacific Partnership from changing our copyright laws.
A Fair Deal is one that opens up new trade opportunities without forcing us to make copyright law changes that would take a major toll on New Zealand.
The fourth round of negotiations for the Trans Pacific Partnership (TPP) starts in Auckland today. Nine countries are meeting to develop a free trade agreement covering a wide range of goods, but it looks as though the copyright maximalists are using it as an excuse to push their extremist position yet again.
The leaked New Zealand position paper clearly indicates that some participants are trying to push a "TRIPS Plus" agenda - an extension of the internationally agreed provisions in the WTO's TRIPS agreement. This agenda, as seen in the South Korean and Australian free trade agreements with the USA, typically includes "three strikes and you're out" Internet infringement laws, punitive minimum damages for copyright infringement, and would also limit access to currently available generic medicines.
Thomas Beagle, Tech Liberty, "New Zealand has already dodged the bullet of "guilt upon accusation" when section 92A of the Copyright Act was overturned, and then again when public pressure fixed the intellectual property provisions in the ACTA treaty. It looks as if the TPP is yet another attempt to push laws that sacrifice civil liberties for media and pharmaceutical company profits."
Transparency in Treaty Negotiation
The TPP negotiations are being held in secret with citizens of the countries involved not allowed to know what their governments are saying. The traditional model for negotiating trade treaties means that the citizens of the countries concerned only get to see the text of the treaty after it's finalised, making any public consultation a sham.
Just like with ACTA, information is escaping and NZ's position paper on intellectual property has been leaked. It shows that the New Zealand government opposes a further extension of intellectual property rights saying that the economic arguments to do so are weak.
David Zanetti, Tech Liberty, "We're disappointed that we're reduced to finding the NZ government's position through document leaks. Why can't these position papers be published for everyone to see? It's not like they're secret from the other negotiating countries."
Tech Liberty believes that the TPP and other similar treaties should be negotiated in public in the same way that UN treaties are. While countries can keep their negotiating bottom lines private, the papers and drafts should be published for others to see. ACTA was originally going to be a secret negotiation but it was leaked - and we ended up with a better treaty as a result. See our full article.
Thomas Beagle, Tech Liberty, "Openness and transparency helped fix the ACTA treaty, we believe that negotiating in the open would improve TPP too. People have a right to be consulted and for that consultation to be meaningful it has to happen before the text is finalised, not afterwards."
Tech Liberty article calling for transparency in negotiating the TPP: http://techliberty.org.nz/acta-vs-tpp-the-case-for-transparency-in-international-treaty-negotiations/
Articles about leaked NZ position paper on IP provisions (includes links): http://www.scoop.co.nz/stories/PO1012/S00046/leaked-paper-nz-us-rift-on-intellectual-property-in-tppa.htm
Link to NZ position paper (PDF): http://www.citizen.org/documents/NZleakedIPpaper-1.pdf
About Tech Liberty
Tech Liberty is dedicated to protecting people’s rights in the areas of the Internet and technology. We make submissions on public policy, help to educate people about their rights, and defend those whose rights are being infringed.
ACTA (the Anti-Counterfeiting Trade Agreement) has shown us that openness when negotiating trade agreements leads to a better result – but it looks like this lesson that hasn’t been learnt by the negotiators of the TPP (Trans Pacific Partnership) free trade agreement.
At the beginning of the year Tech Liberty was involved in the campaign against the ACTA treaty. A major part of the problem with ACTA was that while we knew it was attempting to push more offensive IP laws, the secrecy around the negotiations meant we didn’t know what was in them.
Traditional Closed Model of Treaty Negotiation
ACTA followed the traditional model of negotiating a trade agreement (PDF), which goes something like this:
- A number of countries get together and decide to negotiate an agreement.
- The countries send their delegates to a series of meetings.
- The delegates discuss what sort of things will be in the treaty and come up with an agenda.
- Delegates present papers about particular topics.
- Work starts on a draft agreement.
- The delegates work through the draft removing points of difference.
- The text is finalised and returned to the governments for signing.
- In the democratic countries, the governments consult the people and then decide whether to sign the treaty or not.
- The governments make any required law changes and then sign the treaty.
You’ll note that the consultation with the people comes after the treaty text has been finalised. The process is structured so that there’s no chance that a government could consult, then come back to the negotiations and ask for more changes to be made (and indeed, this could be a bit chaotic).
The 11th round of the ACTA Treaty negotiations have finished and it seems that there won't be any more rounds. Exactly what this means when the treaty text hasn't been finalised is uncertain.
The current treaty text has been officially released.
The Tech Liberty view
We've had a lot to say about the ACTA treaty over the past year. In its earlier form there was a lot to complain about - it was much more than an anti-counterfeiting treaty in the way it tried to impose draconian pro-copyright and pro-patent laws.
In our article, ACTA - Bad for Civil Liberties, we noted five particular points that worried us:
- Excess criminalisation where infringement is taken from civil law to criminal law.
- Statutory damages where the law specifies the amount of damages to be paid to the plaintiff rather than letting a judge or jury make a determination based on the circumstances of the case.
- Third party liability where people (such as ISPs) who provide tools or means that other people use to break the law are held liable.
- Forcing ISPs to breach privacy by giving up customer information on demand.
- TPMs (technological protection measures) where digital locks are used to prevent people using products they've bought in ways that the rights holder doesn't want them too.
In our last update, we noted that our objections to points 1, 2 and 4 had largely been removed, while progress had also been made on points 3 and 5.
Since then, the section about third-party liability (i.e. blaming ISPs) has been dropped in favour of some rather wishy-washy statements about encouraging people to work together to stop infringement within the laws of the respective countries.
The section on TPMs still remains but adds "to the extent provided by its law" which seems to mean that each country will be able to set its own rules. This means that New Zealand can keep its current law that allows people to circumvent TPMs for non-infringing purposes.
In other words - the five issues that we chose to focus on have all been steadily neutered over the course of the negotiations. While we still don't believe ACTA is benign, or necessary, many of the worst aspects have been removed.
Some other views
The ACTA treaty negotiation process is still going strong. The participants apparently feel pressured to finalise the agreement before the end of the year and have agreed to an extra negotiating round in Washington next week to help hurry things up.
The most recent leaked text shows that progress is being made on the details while some major disagreements (mainly around the scope of the agreement - should an anti-counterfeiting agreement also include patents and geographic indications) are yet to be resolved.
In our last summary article about ACTA we raised five issues where we thought that the treaty was a threat to justice and civil liberties.
Here we revisit them and find significant improvement in three of those issues and minor improvements in the other two.
Update: After further analysis and discussion with NZ officials we believe that the current draft of the ACTA agreement would allow New Zealand to maintain its current damages scheme as represented by the (c) option in the agreement (additional punitive damages are decided by the judge). This means that New Zealand would not have to adopt a statutory damages regime to comply with ACTA.
Original article follows:
We've been writing about the ACTA (Anti Counterfeiting Trade Agreement) treaty for a while. We believe that copyright law and enforcement will need to change but also believe that everyone should participate in creating new laws, not just big business and their proxies. As such, we strongly objected to the secrecy around the negotiations and called for New Zealand to withdraw. We also made a submission to the Ministry of Economic Development about the digital enforcement provisions section.
The secrecy around ACTA caused problems for critics because, while much of the contents had been leaked, it was difficult to analyse the draft treaty without solid information. This all changed after the last meeting in Wellington, where global public pressure forced them to release the current draft (pdf) of the treaty.
Now we have the text to look at, were our fears justified? In this article we concentrate on some of the ways that the draft ACTA treaty encroaches on our civil liberties.
In the last few years, New Zealand law governing intellectual property has been in a state of flux driven by the content industry demanding changes to protect their business. No sooner has one set of law changes been debated then another set of the same laws and demands pops up into view. From S92 of the Copyright Act to the ACTA treaty and now to the Trans Pacific Partnership.
The TPP is an existing free trade agreement (FTA) between NZ, Singapore, Brunei and Chile signed in 2005. The TPP allows for more countries to join and the USA, Australia, Vietnam and Peru have all indicated that they are interested. Substantive negotiations began in March.
Of course, the USA has proceeded to reframe the agreement around its usual default template for any FTA - draconian IP protection on behalf of its content industries and limited concessions in all other areas, creating a one-sided arrangement. As Australia experienced in its FTA negotiations with the US, it's not about a meeting of mutual interests but a game of how much wiggle room can be found on the edge of the US demands.
New Zealand has long sought a free trade deal with the US (our second largest export market). In theory it means that our agricultural exports will have an easier time in a large market, but the powerful US agricultural lobby will limit this while changes to IP law will mean an increase in transfers from NZ users to US owners. However, even if the result is actually a net loss to New Zealanders, an FTA with the US is a "win" politically.
S92. ACTA. TPP. Once again the battle is on to defend our rights as both consumers and producers of IP before our laws are rewritten to suit the US.
The Ministry of Economic Development recently asked for submissions on the topic of digital enforcement in the ACTA treaty. We submitted a submission, as did 33 other organisations and individuals.
We requested copies of them under the Official Information Act; here they are in PDF format (we'll do another post with the earlier submissions):
The ACTA countries have agreed to release the draft ACTA text after the latest round of talks conclude in Wellington.
This is an important victory for the principles of open democracy - our government shouldn't be negotiating treaties in secret that take away our rights.