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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.
These talks have included meetings with representatives from IPSafe (www.ipsafe.co.nz) and Datacom (www.datacom.co.nz). IP Safe's website is rather minimal and they have not responded to our queries. Their record at the Companies Office lists three directors, Chris Riddell, Wared Seger and Adel Shahin.
They also note that the Telecommunications Carriers Forum (TCF) submission about the law suggested that a centralised system run by the government would be the best approach, but this was not picked up by the Select Committee.
The MED goes on to say that they are not in the process of considering such a system and "that specific arrangements for the implementation of the Act are a matter for Internet Service Providers to agree on between themselves."
The questions have to be: why is Datacom involved and who are they working on behalf of? Who are IP Safe and what is their involvement?
[This article has been corrected. Please see explanatory note at the end.]
Liability under the new copyright law
One of the issues that we and many others have with the new copyright law is that it unfairly penalises people for the actions of others. You're either an IPAP (a very tight definition of ISP) or an account holder, and if you're an account holder you're liable for the actions of anyone using that internet account.
This means that hotels will be liable for the actions of their guests, universities for the actions of students, the person paying the bill will be liable for their flatmates, and you'd be better be careful about which of your guests you let use your internet while they visit your house.
Ministry of Economic Development advises differently
However, it seems that the Ministry of Economic Development has a different interpretation of the law. The owner of a homestay, concerned that as the account holder he would be liable for his guests, recently contacted the Ministry of Development.
The advice he received from the Ministry was that if he is providing internet services but does not meet the requirements to be an IPAP under section 122, then he must be an ISP and would be safe from liability according to section 92B.
Furthermore, if he received an infringement notice he just had to respond and say that he ran a homestay and that would be the end of it. As he observed, "What's to stop anyone claiming that their house is a homestay?"
We don't find this interpretation particularly convincing (nor did we find it convincing when the NZCS made a very similar argument in their submission (PDF) to the MED).
The intent of the Copyright (Infringing File Sharing) Act seems to be to catch everyone. If we accept the MED interpretation, the definition of ISP in the Copyright Act is so wide that anyone who shared their internet connection with another would thereby be able to claim immunity under it. The law would be fatally undermined.
While we think that this wouldn't be a bad thing, as it would remove liability from account holders who shared their internet and thus avoid the problem of punishing people for the actions of others, it seems clear that this is not the intention of the law makers.
Ultimately this argument will be tested at the Copyright Tribunal and possibly in court, but for now we caution against relying on this advice from the Ministry of Economic Dvelopment. This means that you should assume that the account holder will be liable for any infringing file sharing performed over their internet connection.
[Correction: The article as originally posted said that the advice was from the Ministry of Justice. The MoJ contacted us to deny giving advice to anyone. We followed up with our original source and managed to establish that the advice was actually from the Ministry of Economic Development. We apologise for the error.]
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.
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 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):