While ACTA gets all the attention in Europe, the governments involved in negotiating the Trans Pacific Partnership trade agreement are still charging ahead. There have been 10 major negotiating rounds as well as many inter-session meetings, with the countries involved aiming to get it finished before the end of 2012.
Firstly, the negotiators now have a consolidated draft text that they are working through slowly. Apparently the intellectual property (IP) sections are the most contentious with a lot of major differences still to be resolved.
Secondly, the main IP alternatives are the US proposal (leaked here and similar to other recent trade deals signed by the US) that would see copyright laws become more restrictive, more punitive and less just, versus the NZ/Chile ideas (leaked draft papers) which are largely based on TRIPS and allow for more flexibility between countries and even include some protection for consumers rather than just large media companies.
Thirdly, the US proposed IP chapter goes even further than what they originally proposed for ACTA (which was substantially watered down during the negotiating process). It includes internet account termination, statutory or triple damages in civil suits, an extension of what would count as criminal copyright infringement, allowing copyright holders to ban parallel importing, and criminal penalties for circumventing copy protection measures even if you weren't breaching copyright. As is typical with these types of proposals, respect for the right to due process and a fair trial are sadly lacking.
Finally, the whole process is still very secretive with little information getting out. There is not intention to release any draft texts, and the countries involved have even agreed not to release details of negotiations until four years after the treaty is signed.
What you can do
There's still a long way to go in the TPP negotiating process and there's still room to demand a better treaty and a more open process. Write to your MP and make sure they're aware of what's happening and that you're not happy about it
Considering joining TPP Watch if you're opposed to the whole treaty, or on the IP front NZ Rise is doing good work on sticking up for our local IT industry while Creative Freedom Foundation NZ is defending the interests of local artists.
The government is your friend and wants you to be happy.
This is the transcript of a speech given by Thomas Beagle at Kiwicon in Wellington on November 6th, 2011.
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 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.
New Zealand is one of the four original members of the Trans-Pacific Partnership free trade agreement. Other countries (Australia, the USA, Peru and Vietnam) are now interested in joining the agreement. It is referred to as both TPP and TPPA.
This FAQ answers some of the frequently asked questions about the TPP. It was last updated on 16th May 2011.
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 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.
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.