What is the ACTA?
The Anti-Counterfeiting Trade Agreement is a treaty currently being negotiated between several countries/unions. The purpose of the treaty covers a broad range of Intellectual Property issues, ranging from counterfeit goods to unauthorized distribution of content via the Internet.
Which countries are part of ACTA?
United States of America, the European Union, Switzerland, Japan, Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates, Canada.
What information does the public have about this treaty?
Prior to the Wellington round of negotiations, public information on the treaty was limited to short press releases with no substance and leaks of positions papers.
In March 2010, the full text from the previous round was leaked.
Finally, after the Wellington round, all countries agreed to release the text, cleansed of any information about the positions of any specific countries.
- Index of ACTA leaks at Wikileaks
- Leaked January 2010 text
- Full public ACTA text (April 2010) (PDF)
- TechLiberty ACTA Resources page
When did negotiations start?
The exact start is not known, but appears to be during 2007 based on dates appearing on leaked documents.
Michael Geist has prepared a very useful interactive timeline with links to leaked documents.
Has the New Zealand Government sought public input on the treaty?
In 2009 the Ministry of Economic Development called for public submissions on the ACTA. No detail was provided on what the positions made by any parties in the negotiations were included. The call for submissions was widely criticized as vague, in that there was only conjecture and leaks to make a submission against.
A further call for submissions on specific digital enforcement issues was made in early 2010.
The MED and MFAT have held briefings on ACTA, the most recent in March 2010 before the Wellington round.
What will signing the ACTA require New Zealand to implement?
With the release of the text (both leaked, and public), there are clear obligations the treaty would require New Zealand to implement:
- Share information with other law enforcement agencies; it is unclear what the scope of such information would be, presumed to be relevant to enforcing IP rights
- Engage in co-operative activities against people/organisations breaching IP rights
- Establish criminal penalties for breaching IP rights; these appear to extend down to a single instance of a violation, rather than only “commercial scale” infringement as had appeared in early drafts; such penalties should be punitive in nature rather than the nominal cost of the work infringed and should not be based on proof of degree of infringement
- Moving IP violation from civil action (that is, requiring the rights holder to make a complaint) to a criminal action (that is, the Police may bring action against you directly)
- Inspect and seize any import or export if believed to breach IP rights; release details on those shipments to rights holders
- Allow Rights Holders to force disclosure the identity of unknown persons without that person having legal representation
- Establish criminal penalties for breaking or stripping of copy protection or dealing in devices/software that can be used to break or strip protection
- Restoration of Section 92 style “notice and takedown” methods for handling infringement on the Internet; ISP liability dependent on their co-operation with such processes
This is not a complete list of all the obligations New Zealand would be undertaking.
Will New Zealand be required to pass laws meeting these obligations?
The presumed impact of signing such an agreement with other countries would be passing laws to implement the objectives. It is reasonable to assume, but not yet know, such laws will be harmonized with those passed in other countries. The agreement is likely, but not yet known, to talk about principles and ideas of enforcement, and leave the detail of such laws up to member nations.
If the New Zealand Government proposes these laws, will public input on them be sought?
Laws being passed in New Zealand do require a process of three readings in the House, and a Select Committee process to accept public submissions and make recommendations based on that feedback. However, the Minister responsible for the law being passed can choose to ignore or discard any changes the Select Committee makes. So while public input will be sought it may not affect any changes to the law being passed. This was the case with Section 92A – which was removed by the Select Committee process, and then re-inserted by the Minister without further consultation.
Does the agreement require New Zealand to ratify it?
Signing the agreement does not make it immediately become law. Parliament does have to seperately pass legislation to give the treaty actual effect in law. However, the scope for making changes at this stage are extremely limitied. Parliament is given largely a “take it or leave it” choice.
What other treaties/agreements is New Zealand part of on Copyright?
A complete list of the international treaties and agreements New Zealand has on Intellectual Property (including Copyright) can be found at the Ministry for Foreign Affairs and Trade:
What is the relationship between Section 92A and the ACTA?
The Copyright (New Technologies) Amendment Act 2008 included a clause — Section 92A — which required ISPs to “reasonably impleement” a policy to disconnect customers “in appropriate circumstances” who have repeatedly downloaded copyrighted material. What such a policy must consist of, what standard of evidence is required, and who pays the costs of handling complaints and claims, was never clarified.
The ACTA appear to contain similar requirements, worded in a similar way. While there is no evidence that S92A origins are from ACTA negotiations, the signing of the ACTA would require the restoration of S92A as it was.
Justice Minister Simon Power has denied there is any connection.
Is there any connection between ACTA and the Trans Pacific Partnership free trade negotiations?
McLeod from the MED replies to Clare Curran at the Select Committee hearing:
“Well, there is quite a close relationship between ACTA and the Trans-Pacific Partnership negotiation, which includes the United States—there are eight countries involved.”
When and where are the ACTA negotiations held?
Information on the current round and schedule of negotiations can be found at MFATs website:
Will there be any ACTA meetings in New Zealand?
There was an ACTA meeting in New Zealand during the week of April 12, 2010. It is unknown if there will be any future meetings in New Zealand.
Are there any New Zealand groups opposed to the ACTA treaty?
There are a number of groups in New Zealand that have expressed concern about both the secrecy of the process around the ACTA negotiations as well as the leaked contents of the drafts. These include:
- Creative Freedom Foundation NZ
- Tech Liberty (that’s us).
Are there any international groups opposed to the ACTA treaty?
There are a large number of groups in the world that are concerned about the ACTA treaty.
You can get the names of a number of them from seeing which groups have supported this open letter.
Where else can I find information about ACTA?
Check out the links on our resources page.
Last updated 20/5/2010