Except that Fair Use has effectively been gutted by the DMCA’s anti-circumvention clauses…

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.

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