“ACTA?” you ask. “Never heard of it.”
That’s not surprising. Because a lot of people have gone to a lot of trouble to try to keep you from knowing about it.
ACTA, or the Anti-Counterfeiting Trade Agreement, is an international treaty which has been under negotiation since 2008 and is expected to conclude this year. It is also very bad news.
And don’t let the name fool you; ACTA negotiations are far more about Internet piracy than they are about counterfeiting.
Its scope is broad, and there’s no doubt that ACTA will have far-reaching implications for the countries involved (which include New Zealand, Australia, Canada, Japan, Korea, the European Union, Mexico, Morocco, Singapore and Switzerland).
The problem is, most people have never even heard of it or know that negotiations are currently underway, as the whole thing is being conducted under a strict veil of secrecy.
Critics suspect that the negotiations are being kept secret because they spell bad news for Internet users, travellers, technology enthusiasts and anyone concerned about protecting their civil liberties.
“If Hollywood could order intellectual property laws for Christmas, what would they look like? This is pretty close.” That’s how David Fewer, from the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic, describes what he’s seen in leaked ACTA documents.
Those leaks indicate that there is a real risk that sweeping new powers will be granted to those in charge of enforcing copyright law. It has been proposed that customs officers be given the power to search laptops, cellphones and even mp3 players, looking for evidence of illegally downloaded material, and to confiscate those items if suspicious content is found. Likewise, it has been proposed that service providers should be forced to monitor users’ downloads looking for evidence of copyright infringements, and to hand over the details of those suspected of illegal behaviour.
By all reports the ACTA negotiations seem focused on creating oppressive legal standards weighed heavily in the favour of copyright holders, with little regard for, and no consultation with, the public that would be bound by them.
It’s worth noting here that intellectual property protection is covered by a United Nations agency called The World Intellectual Property Organisation (WIPO). It is dedicated to developing “a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest”.
Note the specific mention of “the public interest”. The free exchange of information is regarded as a right, not a privilege, in democratic countries. This includes education, for example. Schools and universities don’t force students (or their parents) to buy new copies of every text book required. Copying is allowed as ‘fair use’, to help ensure that learning is available to everyone, regardless of their income.
WIPO aims to protect intellectual property by consensus, so that governments will implement sensible policies that look after copyright holders while permitting the proper flow of information. ACTA will effectively destroy much of that good work, with leaked documents (just about the only source of regular information) indicating increased damage awards, mandated information disclosure that could conflict with national privacy laws, as well as the right to block or detain goods at the border for up to one year.
In this country ACTA is being negotiated by both the Ministry for Economic Development and the Ministry of Foreign Affairs and Trade. The New Zealand government has been decidedly quiet on the subject so far, but Simon Power, the Minister for copyright issues, responded to written questions from NetGuide.
“The goal of ACTA is to set a new, higher benchmark for intellectual property rights enforcement that countries can join on a voluntary basis. There is no link between the ACTA negotiations and other trade negotiations involving New Zealand,” Power told NetGuide.
He does concede, however, that refusing to play ball with overseas powers could make things uncomfortable around the dinner table: “Our non-participation would have sent a negative signal about the Government’s commitment to the protection of intellectual property rights.”
The criminal provisions of ACTA suggest that there will be no distinction made between the black-marketeer who systematically rips off copyright material to resell for profit, and a kid who downloads a couple of music files – equally harsh penalties could apply.
The Minister agrees:
“It has been long recognised that significant irreversible financial damage to copyright owners can arise from anyone engaged in copying and distributing infringing copyright material whether or not this activity is motivated by financial gain... If you compare the harm the ‘ordinary consumer’ can cause to the copyright owner from copying and distributing infringing material for free, it is no different to the harm caused by a person selling bootleg DVDs of same infringing material.”
To say that there is “no difference” between an organised, commercial piracy operation and the typical file-sharing behaviour of your average teenager is wilfully obtuse and indicative of the flawed logic currently being bandied about by lawmakers.
As to the secrecy surrounding ACTA, the Minister told NetGuide that “it is standard practice in trade negotiations for the text under discussion to remain confidential to the participants”.However, he promises that the public “will be able to make submissions” on the final form of the agreement when it goes before a select committee.
Copyright holders deserve a degree of protection from the wholesale theft of their works – no argument there. But these protections need to be checked and balanced by the fundamental rights – such as freedom of expression, the right to privacy and the free flow of information. ACTA seeks to undermine these rights. The implications just for ISPs alone are serious, given how they’ve been battling legal moves to make them liable for copyright breaches (see page 19).
With ACTA, overseas copyright holders are trying to coerce governments (especially governments of smaller countries such as New Zealand) into passing laws that will see even casual consumers sought out and punished with the severest penalties the law (or the laws passed by their cronies) can produce.
Goodbye to an Internet that you can actually engage with. Goodbye to participation in media. Goodbye to the free transfer of information and the golden age of a free Internet.
Are we ready to accept a foreign legislative model in totality, no questions asked?
Negotiations conclude this year. The time to start making noise is now.