New Zealand appears to be at odds with the US in the secret international Anti Counterfeiting Trade Agreement (ACTA) talks.
According to Canadian internet law specialist Michael Geist a new leak from the negotiations has revealed a "significant disagreement on a range of issues" among the countries involved.
"For example, on the issue of anti-circumvention legislation and access controls, the US wants it included per the DMCA [Digital Millenium Copyright Act], but many other countries, including the EU, Japan, and New Zealand do not, noting that the WIPO [World Intellectual Property Organisation] internet treaties do not require it."
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The new leak is a European Union document dating from just weeks ago, unlike some earlier leaks which could have been months old. The new document discloses in detail the proposals from the US and counter-proposals from the EU, Japan, and other ACTA nations.
"The 44-page document also highlights specific concerns of individual countries on a wide range of issues including ISP liability, anti-circumvention rules, and the scope of the treaty. This is probably the most significant leak to-date since it goes even beyond the transparency debate by including specific country positions and proposals," Geist writes.
He says with respect to the requirement of a three strikes policy for ISPs as a pre-requisite for safe harbour, "New Zealand is opposed to the condition altogether".
The leak reveals the US, Japan, and the EU want civil enforcement powers to extend to any intellectual property right, while Canada, Singapore and New Zealand seek a more limited treaty that covers only copyright and trademarks.
Activists in New Zealand began Tweeting news of the leak this morning. One, the Tech Liberty group, asked: "Why do New Zealand citizens have to find out the New Zealand position in ACTA negotiations from leaked documents?"
Technologist Nat Torkington has further analysed New Zealand's positions on his website, saying he finds New Zealand to be a "voice of sanity" at the negotiating table. The treaty, he says, is going to need "a lot of close examination from people who can read the legal language and yet who are intimately familiar with the possibilities and opportunities of technology".
"This is why negotiation in secret is a bad idea — our country won’t benefit from the knowledge of experts until the text is set in stone. We’ll get something that likely has flaws, but we’ll have to approve or reject it 'warts and all'," he says.
He says the New Zealand negotiators are not keen on the catchall phrase "intellectual property" used in draft, preferring instead "copyright and related rights and trademarks". They also want to keep the Copyright Tribunal process, designed to replace the lack of due process in s92A, open. for that reason they prefer to use the the term "competent authorities" when talking about policing to "judicial authorities".
The local negotiators also want flexibility when it comes to awarding any damages for infringement and are questioning the scope of the term "online service provider" in line with recent changes to such expressions in proposed copyright legislation here.
The Ministry of Economic Development is also now seeking submissions on the negotiations, outlining key issues here. Submissions are due at the end of the month.