We are entering the information age, where economies are built on the back of digital infrastructure. This ensures the full spectrum of ICT related policy, from Gov2.0 to growing ICT exports is more important than ever.
We need to make sure our capacity to innovate and collaborate with ICT is harnessed to strengthen our exports. It is through supported and skilled industries that economic growth opportunities lie. Achieving this includes ensuring our ICT industry is not inhibited or negatively impacted by relatively untested and overly-zealous expansions of intellectual property protectionism.
The rapid expansion of social media, Open Source and other transformative technologies, all based on collaboration and sharing, is evidence of the powerful platform of open, collaborative effort in driving innovation. In policy terms, this points to the need for an intellectual property regime that acknowldeges the value of this approach to our economy and society. It is obvious we need to rethink the outdated approach to intellectual property forged in a distant past.
With this in mind, I have been keeping an eye on the global Anti-Counterfeiting Trade Agreement (ACTA) negotiations, of which Australia is a part. These negotiations have been happening for almost 3 years, and are due to be completed by the end of this year.
The general aim of this trade agreement is to “establish a new standard of intellectual property (IP) enforcement to combat the high levels of commercial scale trade in counterfeit and pirated goods worldwide”, according to the DFAT website.
This sounds like a laudable goal, however as we have seen in pretty much every trade agreement that includes intellectual property, there is a bit of a ground war afoot as to how much goes too far, led by those in the strongest position to dictate the terms.
There are concerns that the scope of the agreement is far broader then “combat(ing) the high levels of commercial scale trade in counterfeit and pirated goods worldwide”, with individuals in Australia far more vulnerable than citizens in some of the other participating countries as we do not have a Bill of Rights, Fair Use or similar framework defining and protecting individual rights. This is a concern because many of the clauses in ACTA, (as with the AUSFTA) are balanced in the United States through “fair use” and on privacy grounds (just to name a few), however in Australia citizens would have no such protection or recourse.
There has been significant concern expressed around the world about ACTA, with some strong community action in New Zealand including with a major public consultation in April 2010 resulting in the Wellington Declaration on April 13th. The Wellington Declaration is worth reading, and I endorse it as a good standard to try to apply to any and all intellectual property trade policy considerations. It provides a good basic framework for identifying and protecting the digital rights of people, and the ability for industry to innovate, and for genuine criminal behaviour to be addressed.
It also addresses the concerns around such agreements being negotiated in secret, and although I can respect that there are times (including in trade agreements) when secrecy is required, it does pose some important questions around the transparency and accountability of such processes.
The negotiations have been to date largely private between the participating bodies, who are Australia, Canada, the European Union (represented by the European Commission, and the European Union President), Japan, Jordan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, the United Arab Emirates, and the United States. A partial draft of the agreement was released on April 21st 2010, which has seen substantial public analysis.
Kimberlee Weatherall has done an in-depth analysis of ACTA as it relates to Australia, which is an invaluable resource as it presents a localised analysis of the agreement.
This agreement is reminiscint of the Australian/US Free Trade Agreement from 2004/05. At the time, I spoke out about is potential impact Chapter 17 of the Australia/US Free Trade Agreement on Australias ICT and cultural industries in particular. Chapter 17 was basically an implementation of the US Digital Millenium Copyright Act (DMCA) from 1988, which itself has had some negative unintended consequences.
It is still unclear as to the net benefit of these aspects of the AUSFTA to Australia. It would be informative to see a full analysis of the impact of the existing intellectual property trade changes on the Australian ICT and cultural industries and communities to consider in the context of these aspects of ACTA.
There is a fact sheet on the DFAT website about the ACTA negotiations for further reading about the part that Australia has played, and if you have any feedback on this agreement, you can email your submission to IP@dfat.gov.au, or post your submission to the address below.
International Intellectual Property Section
Services and Intellectual Property Branch
Department of Foreign Affairs and Trade
R.G. Casey Building
Barton ACT 0221
There is also a public consultation about ACTA this Friday the 11th June in Canberra at 10.00am, and you can RSVP by emailing ip@dfat.gov.au or calling 6261 9254 by close of business Wednesday, 9 June 2010. If you are unable to go, but have a burning question to ask, please post it below.
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One of the differences I see in the DMCA and the drafts of the ACTA agreement, is that the DMCA has some limited “safeharbor” provisions which limit the liability of organisations such as ISPs against what is done on their networks.
This seems in line with the judgement in relation to iinet in Australia and honestly, seems quite reasonable in my personal opinion (not that it’s worth much).
ACTA appears to have provisions directly to the contrary and this is incredibly burdensome to industry and technically implausible to effectively enforce at the least.
The linked article also makes some good points in this regard and I think it’s worthwhile noting that we don’t hold Australia Post liable for any problematic material people might post to each other.
The article also makes good comments with regards to the existing abuse of take down notice type systems in the USA, and comments (valuably, I think) on the kind of lop sided provisions ACTA entails in this regard. The language associated with the presentation of these notices and the want to terminate users who continually abuse the rights of others is perhaps reasonable, but should not in itself become a mechanism for organisations or individuals without a legitimate claim to abuse the rights of competitors or whoever else they deem necessary.
I also feel that in Australia, we’ve already got very limited provisions for fair use of copyrighted material in some contexts (for example, academic purposes). One of the things that I think should be discussed in conjunction with these proposals is why criminalisation of circumvention methods has been allowed to occur.
Great to hear some discussion on these matters though! Bit of a shame I can’t get to Canberra, but I think I might put together a submission
AUSFTA/ACTA OVERLAP
One argument that is always made in favour of signing ACTA is that some of its requirements are similar to Australia’s existing obligations under AUSFTA. If an obligation already exists under AUSFTA, then there is no harm to agreeing to it under ACTA. This point is well made in your piece.
The problem is agreeing to ACTA may limit the ability of Australia to positively change its laws in the future and correct some areas of bad policy – particularly in respect of the DMCA/AUSFTA requirements that Australia imported from the US. The ADA has always said, Kim Weatherall in particular, that:
• There is no benefit to Australia from cementing its AUSFTA obligations into international obligations by agreeing to them in ACTA. Australia must retain the flexibility to change its laws in the future, particularly given the lack of consultation in the drafting of AUSFTA and the general understanding that some aspects of it are bad policy.
• Australia has flexibility under AUSFTA because the obligations are only owed to the United States, we may lose this under ACTA as the obligations will be owed internationally to many countries.
• For example, Australia’s laws on TPMs might not be strictly compliant with AUSFTA’s requirements as they limit TPM protection on public policy grounds. The US has not complained. Under ACTA, Australia would not have this flexibility, and might be pressured to remove these very worthwhile limitations.
• By agreeing to AUSFTA requirements in ACTA, we lock them in and lose the ‘wriggle room’ that we have with the US.
EXPORTS
Another argument made in favour of signing ACTA is that it will facilitate the ability of Australian businesses to export IPR goods with confidence. Yet, of Australia’s top ten export markets only China, India and Thailand could be said to have poor IPR protection.
Notably, these countries are absent from the ACTA negotiations and it will require significant coercion to get them to sign. Further, exports to those countries are primarily resources which require no IPR protection.
Kate Lundy, you are everything Australia needs in a leader for a great Digital Economy.
I would like to see the so-called public consultation live streamed online with a question facility. This could be done at minimal cost and would allow the public, predominantly people who work and live far from Canberra, the opportunity to be involved. It should also be recorded and be available online in
an unedited form for later public review
Sorry, but could I have a plain English version of what “ACTA: DMCA Mark II?” is about?
“many of the clauses in ACTA, (as with the AUSFTA) are balanced in the United States through “fair use”…”
Except that Fair Use has effectively been gutted by the DMCA’s anti-circumvention clauses…