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."

References

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.

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:

1. A number of countries get together and decide to negotiate an agreement.
2. The countries send their delegates to a series of meetings.
3. The delegates discuss what sort of things will be in the treaty and come up with an agenda.
4. Delegates present papers about particular topics.
5. Work starts on a draft agreement.
6. The delegates work through the draft removing points of difference.
7. The text is finalised and returned to the governments for signing.
8. In the democratic countries, the governments consult the people and then decide whether to sign the treaty or not.
9. 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).

Of course, some countries might talk to interested people about what their position should be at stages 4 - 6, and the New Zealand government made some effort to do this. However, it’s very hard to provide useful input into a process where you’re not allowed to see what the participants are saying.

Finally, we note that it seems uncommon for a country to not sign a treaty that they were involved in negotiating. This makes it even more important to get the text of the treaty correct.

ACTA Revealed

The ACTA treaty started out by following this model but then something unusual happened: concerned insiders released a draft version of the treaty. This leaked draft was published on the Internet and suddenly we could see what the treaty said as well as the different positions of the participants on the remaining points of difference.

But we note that the world didn’t end when the draft text was leaked (and leaked multiple times as new versions were produced - someone on the inside obviously had problems with the treaty):

• As far as we know, there were no repercussions when people found out that countries had different opinions about certain sections.
• The treaty negotiations did not break down.
• The participating countries realised that secrecy was no longer an option and released an official draft text (albeit with less detail then the leaks).

Unfortunately our fears were confirmed and we found that the draft ACTA treaty contained a number of bad ideas that infringed on our civil liberties:

• Trying to turn civil or private infringement into a criminal act.
• Enforcing punitive statutory damages rather than leaving them up to the judge to determine.
• Blaming ISPs when people downloaded infringing material over their network, even though ISPs are just providing a connection.
• Obliging ISPs to breach the privacy of their users by forcing them to give up the identities of their users on demand from anyone.
• Banning people from circumventing digital locks on copyrighted works, even if the person is just doing it to use material they paid for.

Final ACTA

The draft text triggered strong opposition from people all over the globe. They pointed out flaws, made suggestions for improvement, and lobbied their governments.

While this was going on the negotiations continued and, one by one, those five points were either removed or significantly watered down. While the final version of the ACTA treaty isn’t ideal it is still a major improvement over what we saw in the early drafts.

Undoubtedly some of those changes would probably have happened even without the public pressure. But at the same time, it also must have had an influence, even if just strengthening the negotiating positions of those who opposed those five points. We note that negotiators have confirmed that public pressure did have an effect on the content of the ACTA treaty.

A Better, More Open, Model

Ultimately, we believe that we ended up with a better ACTA treaty due to the release of the draft text and the resulting reaction from the people who would be subject to it. Openness worked (and we note that this is how treaties such as TRIPS are negotiated).

Some positives of the open negotiation model:

• Lobby groups could work out whether they needed to take an interest.
• Interested parties could provide detailed feedback rather than having to submit nebulous general responses.
• Everyone is equal, unlike with ACTA where the US government shared early drafts with some lobby groups.
• Negotiators had a better idea of whether their people were behind them – or not.

Negotiating TPP

This brings us to the Trans Pacific Partnership. The next round of negotiations are being held in Auckland from the 6th-10th of December. The Ministry of Foreign Affairs and Trade will be hosting some stakeholder events, but these are very much in the old style of "we won't tell you anything about what we're discussing".

At the moment the TPP negotiators are submitting papers about some of the topics that will be included in the treaty. What would be the harm if these were released? It's not as if all the participants don't get to read them so revealing them will not put any party at a disadvantage. And, when the negotiations get to that point, what would be the harm in releasing a draft text after each round?

[Edit: The New Zealand paper on IP Enforcement in TPP has been leaked.]

At Tech Liberty we’re big fans of democracy and believe that it relies on open and consultative government. Government works better when it involves more people and this applies to international trade treaty negotiations as much as anything else.

We believe that the TPP negotiations should reject the traditional closed model and switch to a more open negotiation. We’re not suggesting that countries should be obliged to reveal their own internal deliberations or reveal their negotiating bottom lines, rather that by gaining more input the negotiators will be able to do a better job of representing the interests of their respective governments and we will all end up with a better treaty.

If you’re a TPP negotiator and want to do your bit in favour of openness and a better treaty, please send documents to contact@techliberty.org.nz.

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:

1. Excess criminalisation where infringement is taken from civil law to criminal law.
2. 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.
3. Third party liability where people (such as ISPs) who provide tools or means that other people use to break the law are held liable.
4. Forcing ISPs to breach privacy by giving up customer information on demand.
5. 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.

Further changes

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

Michael Geist:

One of the biggest stories over the three year negotiation of ACTA has been the willingness of the U.S. to cave on the Internet provisions. When it first proposed the chapter, the U.S. was seeking new intermediary liability requirements with three strikes and you're out used as an example of an appropriate policy as well as language that attempted to create a global DMCA.

Public Knowledge:

The final text of the Anti-Counterfeiting Trade Agreement (ACTA) should be seen as a qualified victory for those who want to protect the digital rights of consumers around the world. ... The agreement would give more flexibility to the signatories than did previous versions.

However, the way this agreement was produced is still deeply flawed. The inclusiveness was not arrived at easily, nor was it ever complete.

As we have said before, this is not a trade agreement in the traditional sense of past trade agreements. In all but name, it is a treaty to govern the treatment of intellectual property. As such, it should have been negotiated in the open at a forum such as the World Intellectual Property Organization (WIPO), subject to a full Congressional debate and Senate ratification.

La Quadrature du Net:

In spite of all the assurances given by the negotiators, the dogmatic approach to copyright embodied by ACTA remains a major threat on the fundamental freedoms of Internet users. New wording now seeks to extend the scope of the "digital chapter" to criminalize "unlawful uses of means of widespread distribution".

The release of this near-final version of ACTA does not satisfy the transparency requirement of democracy, since citizens and their elected representatives are put before a 'fait accompli'. If this agreement were to be implemented, the rights and freedoms of citizens across the world as well as democratic processes would be severely undermined. Ratification of ACTA must be opposed by all means.

Rick Shera (@lawgeeknz):

Article 2.18(5) combined with footnote 14 at the bottom of that page would make illegal the breaking of a TPM to avoid geographic zone controls, even where there is no copyright infringement per se. This is directly contrary to the change made in NZ in 2006 to add section 226(b) to the Copyright Act. The question I'll be asking of our officials is whether the “without prejudice” language at the start of that sentence in footnote 14, means that NZ does not have to enforce access control because section 226(b) would be “prejudiced” if it did.

IPtegrity:

From a European perspective, the US has proved unable to export the DMCA. However, maybe it didn't need to do that. Hollywood lobbyists, joined by the international music industry, have been hard at work for a long time, pushing for alternatives that are a better fit with European requirements. Namely graduated response.

When we consider ACTA under EU law, there is no doubt that one must conclude it refers to graduated response / 3-strikes measures. There are variations on the implementation of graduated response, and I do not think it is possible to specify such measures in an international treaty, because each individual nation will have its own legal system and a slightly different requirement for implementation.

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.

1. Criminalisation - enforcement overkill

Criminalisation takes copyright infringement from civil law, where the aggrieved party can sue the offender in court for redress, to criminal law where the offender is arrested by the Police and can be punished by jail and fines.

The last version of ACTA required the parties (i.e. the signatory countries) to criminalise:

• infringement "on a commercial scale" or "for financial gain"
• recording a movie in a movie theater

This doesn't sound bad until you realise that "for financial gain" would include someone copying a DVD (because they now don't have to pay for one) and "commercial scale" could include using peer-to-peer file sharing where many people might download part of a file from one person.

Changes in latest draft

The latest draft of 2.14 (page 15 of the leaked draft) has added text that makes some attempt to define what "commercial scale" and "financial gain" mean, making it much more in line with what a reasonable person would expect from those terms. More importantly, the EU and US have proposed additional text that would explicitly exclude end consumers from being criminalised by this clause.

The curious obsession with people recording movies at the theatre still remains, although the European Union, Japan and Singapore wish to remove or significantly weaken this clause.

We believe that these changes, assuming they survive the drafting process, are a significant improvement and largely remove our objection to this aspect of ACTA.

2. Statutory damages - monetising justice

Statutory damages are 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.

We oppose statutory damages as they (a) are deliberately inflexible, (b) tend to be set too high, and therefore (c) encourage extortion by legal threats.

The original draft (article 2.2) had multiple competing proposals, some of which included statutory damages.

Changes in latest draft

The latest draft of article 2.2 (pages 6-7) includes the standard damages (compensation for injury to the rights holders and taking the profits of the infringer) but leaves the question of additional damages up to each country to decide.

New Zealand could choose to implement option C, "at least for copyright, additional damages", which matches current NZ law where the judge can decide, on the facts of the case, to add punitive damages.

This is a significant improvement and removes our objection to this part of the ACTA treaty.

3. Third party liability - blaming the innocent

Third party liability is the idea that people who provide tools or means that other people use to break the law should also be held liable.

ACTA stipulates that internet service providers (ISPs) should be liable if their users download pirated material (article 2.18.3). However, it does provide a limited set of protections for ISPs (a 'safe harbour') if they implement certain procedures, the nature of which are not clearly defined and still still appear to be the subject of negotiation.

Changes in latest draft

There are a number of changes to section 2.18 (pages 18-24) and, judging by the number of footnotes and bracketed options, there is still a lot of negotiation to go.

• There is still considerable disagreement around scope - whether third party liability should be only for copyright or also for patents, designs and trademarks.
• We are pleased to note that ACTA does seeem to have dropped the idea of graduated response (i.e. "three strikes and you're out") although this doesn't stop individual countries implementing such a scheme.
• There is also language that implies that people accused of infringing copyright can challenge the accusations before material is taken down (2.18.3(c)(i)).

In general it looks as though ACTA is moving in the right direction on some of these issues, with the treaty making more room for the individual countries to choose their own legislative responses within a very broad framework.

However there is still considerable cause for concern, not least that we disagree with the overall concept of blaming ISPs for the actions of their users.

4. Giving up customer information - lack of due process and privacy

The earlier draft obliges online service providers to hand over personal details of anyone accused of infringing copyright to the person making the accusation. We believe that this is a gross invasion of privacy and is an inappropriate grant of investigative powers to commercial groups.

Changes in latest draft

Section 2.18.3 (page 21) does not include the strong language of the earlier drafts.

There is a general clause that says that the parties will "encourage the development of mutually supportive relationships between online service providers and rights holders", which seems basically meaningless.

There is also a Japanese proposal to include provisions for forcing online service providers to give up details of subscribers but this power can only be exercised by the courts.

We are pleased to see that the original clause is gone from the ACTA treaty. We also have no objection to the Japanese proposal that service providers can be ordered by the courts to reveal subscriber information (assuming that there are appropriate safeguards).

5. Technological protection measures (TPMs) - taking away rights to use property

TPMs (technological protection measures) are digital locks used to prevent people using products they've bought in ways that the rights holder doesn't want them too. For example, the region coding on DVDs means that if you buy a DVD in one region you can't play it on a DVD player in another region.

The earlier draft prohibited the removal of technological protection measures as well as the distribution of products that are designed to do this. It explicitly says that this shall be a separate offence, irrespective of whether someone is doing this to infringe copyright or not.

Changes in latest draft

The relevant section 2.18.3 (page 21) is heavily adorned with footnotes and bracketed options. However, the general thrust of the clauses still shows that ACTA still intends to prohibit people from accessing the material they have purchased the rights to in the way that they prefer.

We oppose this and hope that the New Zealand proposal to exclude anything that controls access to a protected work for non-infringing purposes (e.g. you wish to watch your legally purchased DVD on non-authorised equipment) is included in the final text.

Conclusion

When looked at through Tech Liberty's civil liberties lense, the ACTA agreement is steadily improving. Of the five areas we highlighted in our last article, three of them have been substantially improved and some progress has been made on the other two.

However this should not be taken to mean that we believe ACTA is benign. We reject third party liability as being unjust and think that consumers should have the right to break technological protection measures (TPMs) in order to exercise the rights they paid good money for.

The lack of transparency around the negotiations continues to worry us. Luckily it seems to worry some of the participants too, judging by how quickly draft versions are being leaked. However, as citizens in a democracy we shouldn't have to rely on leaks to find out what our government is doing on our behalf.

Moving away from civil liberties, there are also major concerns about the inclusion of patents in what claims to be an anti-counterfeiting agreement and what this might mean for the availability of life-saving generic medicines.

Finally, we note that while ACTA is improving, we expect many of the same issues to reappear in the negotiations for the Trans Pacific Partnership. It seems that the rights-holders are prepared to keep banging away until they get the laws they want, therefore we will do our best to keep defending our rights.

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.

January 2010 Draft Text

In the Leaked January 2010 draft appearing above, New Zealand position on statutory damages (i.e. made up numbers like in the US where you face US$175,000 per infringement for each US$0.99 song) was fairly clear - we don't have such a damages system anywhere in our laws, and wouldn't accept one here. That is shown by notes proposing it's removal, and watering down the paragraph to "may" implement.

July 2010 Draft Text

Now looking at the post-Lucerne leaked text, any objection by New Zealand is gone. The "may" which would allow us to avoid implementing statutory damages is replaced with an unqualified "shall".

Did we just concede statutory damages?

Do claims by MFAT and MED that "no law changes are required" now stack up with the leaked text?

Is the New Zealand position now all in favor of monetizing justice?

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.

Specific problems

Criminalisation - enforcement overkill

Criminalisation takes copyright infringement from civil law, where the aggrieved party can sue the offender in court for redress, to criminal law where the offender is arrested by the Police and can be punished by jail and fines.

ACTA requires (article 2.14):

• criminalisation of copyright infringement on a "commercial scale" or "for financial gain".
• criminalisation of the act of recording a movie in a theatre.

This doesn't sound bad until you realise that "for financial gain" would include someone copying a DVD (because they now don't have to pay for one) and "commercial scale" could include using peer-to-peer file sharing where many people might download part of a file from one person. The similar Australian law explicitly provides an exclusion for people's domestic usage - but this exclusion is not in ACTA.

Any justice system must ensure that it is both equitable and fair. Does it seem reasonable to arrest someone for, as an example, infringing copyright by copying the movie from a DVD they bought to a portable video player?

We believe that criminal enforcement should be reserved for large scale businesses that are attempting to profit from their infringement, rather than chasing individuals for their private acts. It shouldn't be used to intimidate individuals and force the government to pay for IP enforcement. At a minimum, ACTA should better define "commercial scale" and "for financial gain" to exclude personal acts aimed at domestic use.

Statutory damages - monetising justice

Statutory damages are 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.

ACTA currently has versions with both statutory and non-statutory damages (article 2.2). Which one will make it into the final version of the treaty is the subject of negotiation.

We oppose statutory damages in these types of cases and believe it distorts the justice system:

• It leads to situations where penalties are manifestly unfair compared to the damage done to the plaintiff.
• By guaranteeing a minimum return it provides an incentive for companies and lawyers to bring cases to court based on their money making potential.
• It lends itself to legal extortion, where rights holders threaten large numbers of people with legal action and then allow them to settle each case for a few thousand dollars rather than risk paying outlandish damages in court.

Justice must be fair and proportionate or it becomes injustice. We recommend that all damages should have to be based on actual losses and should be at the discretion of the courts.

Secondary liability - blaming the innocent

Secondary liability is the idea that people who provide tools or means that other people use to break the law should also be held liable.

ACTA stipulates that internet service providers (ISPs) should be liable if their users download pirated material (article 2.18.3). However, it does provide a limited set of protections for ISPs (a 'safe harbour') if they implement certain procedures, the nature of which are not clearly defined and still still appear to be the subject of negotiation.

We reject the idea of punishing the innocent for the sins of others and therefore reject the idea of secondary liability for ISPs. They should not be held liable for people using their services to infringe copyright, in the same way that the power company is not held liable.

Giving up customer information - lack of due process and privacy

ACTA includes the following as an option (article 2.18.3):

Each Party shall enable right holders, who have given effective notification to an online service provider of materials that they claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identity of the relevant subscriber.

In other words, if the rights holders accuse someone of pirating something the ISP must give them the name of the account holder. We believe that this is a gross invasion of privacy and is an inappropriate grant of investigative powers to commercial groups.

We believe people have a right to a reasonable expectation of privacy. Personally identifying information should only be released at the order of a court after an appropriate process is followed.

Technological protection measures - taking away rights to use property

TPMs (technological protection measures) are digital locks used to prevent people using products they've bought in ways that the rights holder doesn't want them too. For example, the region coding on DVDs means that if you buy a DVD in one region you can't play it on a DVD player in another region.

ACTA, in article 2.18.4, prohibits the removal of technological protection measures as well as the distribution of products that are designed to do this. It explicitly says that this shall be a separate offence, irrespective of whether someone is doing this to infringe copyright or not.

We believe that TPMs infringe the rights of people to use the products they have paid for. TPMs aren't just used to prevent copyright infringement, they also stop blind people using screen readers, can prevent people from printing a page from ebooks, and stop people playing DVDs on a laptop they bought in another country. In each case, people have had to circumvent the technological protection measures to be able to use the product they paid for.

Circumventing TPMs for lawful and reasonable purposes should be entirely legal.

Conclusion

ACTA is an attempt by the content industries to change international law to suit their economic requirements. The content industries are not interested in civil liberties - the right to due process, the right to a proportionate and fair justice system, the right to privacy, the right to use the products you buy.

We believe that any changes to IP laws and enforcement of those laws must take into account the needs of all of the interested parties. This means that the laws should be fair to those who are the customers of the content industries and must not take away our rights.

Civil liberties must not be sacrificed to protect the profits of the content industries.

Credits: We're indebted to Kim Weatherall for her in-depth analysis of the released ACTA text.

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.

More information:

• Trans-Pacific Partnership (at MFAT)

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):

• Andrew McPherson 31 March 2010
• Andrew Russell 31 March 2010
• Barry Warren Polley 30 March 2010
• BASCAP 29th June 2009
• Chris Slane 31 March 2010
• Colin Jackson March 2010
• Creative Freedom Foundation 7 April 2010
• Dylan Horrocks 29 March 2010
• Google 10 February 2010
• Google 31 March 2010
• Internet NZ 31 March 2010
• Internet Society 31 March 2010
• Joel Wiramu Pauling
• John Condron 31 March 2010
• John Cranfield 6 April 2010
• Jonathan Marshall undated
• M Kew undated
• Matt Perryman 30 March 2010
• Nick Taylor 4 March 2010
• Norbort Bollow 7 April 2010
• NZFACT 16 April 2010
• NZOSS undated
• Oxfam undated
• Paton-Simpson Associates undated
• Paul Waite 31 March 2010
• RIANZ 30 March 2010
• Rikki 17 March 2010
• Rob Seddon-Smith 4 March 2010
• Royal NZ Foundation for the Blind - 31 March 2010
• Sam Stockwell 30 March 2010
• Stephen Bell undated
• TCF 30 March 2010
• Tech Liberty 31 March 2010Telecom 31 March 2010
• Tony Wallis 1 April 2010
• Trademe 31 March 2010

Notes

We haven't done an extensive analysis, but here some things we noted:

• Sam Stockwell accidentally wrote "I would support people illegally selling stolen material for profit". Queried by MED, he quickly clarified it to say he meant the opposite.
• NZ FACT (Federation Against Copyright Theft) recommends using the USA's DMCA (Digital Millennium Copyright Act) as an appropriate baseline for issues of secondary (ISP) liability.
• NZ FACT supports the idea that a court order is the appropriate method for a rights holder to be able to get user information from an ISP.
• Trademe points out that they make efforts to avoid hosting content and products that infringe copyrights, but worry that they can't catch everything and aren't sure whether ACTA as currently drafted would give them safe harbour protection from liability.
• Oxfam calls for patents to be excluded, worries that ACTA will limit access to affordable medicines.
• RIANZ (Recording Industry Association of NZ) acknowledges that a court order is the appropriate way for a rights holder to be able to get user information from an ISP.
• The Royal NZ Foundation of the Blind wants ACTA to allow people to circumvent TPMs to exercise permitted use of protected content.
• Chris Slane, cartoonist, wants to be able to use copyrighted works and trademarks for the purpose of review and satire.
• Norbort Bollow, Google and BASCAP made the only submissions that were obviously from overseas.
• Google doesn't think that ACTA should include secondary liability or, if it does, the safe harbour provisions should be robust. They also recommend penalties for false claims.
• John Cranfield is claiming that infringement doesn't happen when people share data files, but occurs when people use a player to convert that data to audio/video. Therefore he says the correct answer is to regulate operating systems and digital media players.
• Telecom is concerned that ACTA may impose additional costs on ISPs and does not want have to decide whether users are infringing or not.
• Overall, and admitting that the sorting was rather crude, there were 30 submissions against ACTA and 4 submissions in favour.

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.

However, making the ACTA text available for criticism and comment is only the first step. The battle about the substance of the treaty now begins. The statement also included the following claims:

• ACTA will not interfere with a signatory’s ability to respect its citizens’ fundamental rights and liberties, and will be consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) and will respect the Declaration on TRIPS and Public Health.
• There is no proposal to oblige ACTA participants to require border authorities to search travellers’ baggage or their personal electronic devices for infringing materials. In addition, ACTA will not address the cross-border transit of legitimate generic medicines.
• While the participants recognise the importance of responding effectively to the challenge of Internet piracy, they confirmed that no participant is proposing to require governments to mandate a ‘graduated response’ or ‘three strikes’ approach to copyright infringement on the Internet.

It is our opinion that these statements were not true of the most recently leaked text; we look forward to seeing the current version of the draft treaty.

• 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.