ACTA: Improving but problems remain
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.
ACTA: Say hello to statutory damages
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:
There's a new ACTA draft leak out, thanks to La Quardature. And does it contain a shocker when comparing the new and last leaked texts.
ACTA: Bad for Civil Liberties
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.
ACTA Submissions 2010
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):
First battle won – ACTA text to be released
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.
A Week of ACTA
It's going to be a week of ACTA in Wellington, New Zealand.
- On Saturday (April 10th) we have PublicACTA organised by InternetNZ. It's a chance for people who oppose ACTA to get together and discuss how to stop it. Guest speakers include Canadian law professor Michael Geist and Australian academic Kim Weatherall.
- Then, the following week (April 12-16th) there's the latest round of the official ACTA negotiations.
Why we oppose ACTA
- We oppose the attempt to take away people's rights (due process, freedom of speech, right to own and use property) in an attempt to protect the business models of the big media and pharmaceutical industries.
- We oppose the secrecy around the ACTA negotiations. Democratic societies should debate their laws in public.
- We oppose the way that the ACTA treaty is an attempt to legislate by treaty, avoiding the normal democratic process in each of the participating countries.
Tech Liberty articles about ACTA
- ACTA and the New Copyright Deal
- ACTA - The NZ Official Information Act Requests
- Media Release: New Zealand has no place in anti-democratic ACTA negotiations
- IP: Singing from the Same Songbook
- Tech Liberty's submission to the Ministry of Economic Development about digital enforcement in ACTA.
Submission about Digital Enforcement Provisions in ACTA
The Ministry of Economic Development asked for submissions about the Digital Enforcement Provisions in the ACTA treaty.
While we object to New Zealand's participation in the treaty, we still thought it was worthwhile to respond. The full text follows (headings correspond to those in the request for submissions), but the 8 recommendations we made are:
- The ACTA treaty should note that ISPs are not liable for the actions of their users.
- That ACTA includes a "notice and counter-notice" regime where complainants can pay ISPs to deliver a notice to the account holder for an IP address at a particular time, and the ISP can pass responses back to the complainant.
- That ACTA specifies that complainants should be able to obtain the identity of a user from the ISP only after a court order has been obtained.
- That ACTA makes no attempt to encourage mutually supportive relationships between ISPs and rights holders.
- That ACTA should recognise that anti-TPM measures have a useful and lawful purpose.
- That ACTA should insist that participating countries allow consumer rights-holders the right to create, buy and use anti-TPM software and devices if these are used for lawful purposes.
- That ACTA should forbid the use of TPMs that limit the reasonable and customary rights of people to enjoy the use of the rights that they have purchased or otherwise legally obtained, unless the supplier also undertakes to provide unprotected versions when required.
- That ACTA should not include enforcement measures concerning the removal or modification of copyright management information.
Five New Things About ACTA
With the leak of the full text of ACTA, complete with every nuance of positions by the various countries involved, we have the first full and complete picture of what our government is up to.
Here's five things we learnt from reading the treaty.
ACTA – The NZ Official Information Requests
We've written about the unhealthy secrecy around the ACTA treaty negotiations. As New Zealanders we believe we have a right to know what our government is doing on our behalf.
We wrote to the Ministry of Economic Development and the Ministry of Foreign Affairs and Trade to ask them some questions about ACTA under the Official Information Act. We just got our answers back (scanned PDFs of the MED letter - 3MB, MFAT letter - 3MB, and cabinet paper - 6MB) and we have to admit that we weren't very surprised to see more excuses not to release official information than we saw information.
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Recent Posts
- Submission: Search & Surveillance Bill
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- ACTA: Improving but problems remain
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- Sky’s Takedown Notices – Justice or Intimidation?
- ACTA: Say hello to statutory damages
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- Privacy and Technology
- Submission – Copyright (Infringing File Sharing) Bill
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Trans-Pacific Partnership: An FTA with fangs
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.
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