Anti-counterfeiting agreement mirrors S92A

Participants negotiating the proposed international Anti-Counterfeiting Trade Agreement (ACTA) have released a joint statement which lets in a few chinks of light on a discussion widely criticised for its secrecy.

A sketch of the matters being discussed raises a potential red flag by mentioning, as with the NZ Copyright Act's now abandoned Section 92A, the co-operation of internet service providers in detecting infringement of intellectual property rights online.

However, details are lacking.

Section 4 of Chapter 2 in the summary is titled "intellectual property rights enforcement in the digital environment". The section reads in its entirety: "This section of the agreement is intended to address some of the special challenges that new technologies pose for enforcement of intellectual property rights, such as the possible role and responsibilities of internet service providers in deterring copyright and related rights piracy over the internet.

"No draft proposal has been tabled yet, as discussions are still focused on gathering information on the different national legal regimes to develop a common understanding on how to deal best with these issues."

Critics have suggested that the influence of major intellectual property owners in the ACTA discussions could override democratic principles of balanced debate if discussions continue to be conducted behind closed doors.

The statement, (available on the Ministry of Economic Development website here) emphasises that "a comprehensive set of proposals for the text of the agreement does not yet exist", so requests for the text of the agreement to be released are premature, it says.

"It is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation," says the statement. "This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues."

However, a chapter-by-chapter outline of the general themes of the agreement follows.

Basically ACTA is concerned with harmonising legal remedies and investigatory procedures against counterfeiting, piracy and the import and possibly export (the scope of ACTA on exports has not been settled) of infringing goods.

The summary goes some way to calm individual citizens' fears of having their laptops searched for copyright songs and videos at every border.

"The intended focus is on counterfeiting and piracy activities that significantly affect commercial interests, rather than on the activities of ordinary citizens," it says. "ACTA is not intended to interfere with a signatory's ability to respect its citizens' fundamental rights and civil liberties."

However, those who in the context of now abandoned New Zealand copyright legislation talked of "guilt upon accusation" are unlikely to be impressed with the measures contemplated to prevent damage to the copyright owner's interests in advance of a substantive legal trial of the issues.

For example, the statement mentions an effort to arrive at consistent provisions covering "the authority of the judicial authorities to order injunctions which require that a party desist from an infringement" and "provisional measures, such as the authority for judicial authorities or other competent authorities to order, in some circumstances, the seizure of goods, materials or documentary evidence without necessarily hearing both parties".

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