ACTA: harmless or horror?

ACTA event in Auckland lays out the issues

Is the Anti-Counterfeiting Trade Agreement (ACTA) a harmless attempt to quietly harmonise intellectual property laws and enforcement around the world, or a threat to civil liberties that will require fundamental legislative changes to implement?

The views of officials and lobby groups differ widely on what ACTA entails, as was evident in Wednesday's ACTA briefing in Auckland, organised by InternetNZ. Speaking on background at the briefing was a Ministry of Foreign Affairs and Trade (MFAT) negotiator who leads the New Zealand team at the ACTA talks.

ACTA is an attempt to update earlier intellectual property regimes such as the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) from 1994 and is aimed at large, commercial counterfeiters and copyright infringers, MFAT says.

ACTA won't impact on the activities of ordinary New Zealanders, the spokesman says, nor is treaty is not designed to be intrusive or to have an impact on consumers' ability to purchase and use legitimate goods. Parallel importing and access to generic medicines will still be available under ACTA, he says.

According to the ministry, the negotiations won't change existing intellectual property rights standards as set out in TRIPS and the World Intellectual Property Organisation (WIPO). Also, it won't change existing consumer rights or interfere with the Privacy Act or the Bill of Rights Act.

However, InternetNZ's senior research fellow in cyberlaw, Jonathon Penney, intellectual property lawyer Rick Shera of Lowndes Jordan and independent technology consultant and media commentator Colin Jackson also spoke and warned of the potential consequences of ACTA.

There has been no economic analysis on ACTA, Jackson pointed out, saying that instead of providing benefits to New Zealand exporters, overseas industries are the ones that will reap the rewards.

InternetNZ's Penney says the spirit of the treaty will have to be adhered to under international law, and New Zealand can't enact legislation that contradicts ACTA. As it stands, ACTA is essentially an extension of the US Digital Millennium Copyright Act or DMCA, according to Penney and introducing it will alter New Zealand law, especially the Copyright Act.

MFAT says New Zealand joined a group of like-minded countries in the ACTA negotiations to foster innovation, productivity and economic prosperity. International standards and cooperation will provide New Zealand exporters with certainty.

There is a growing trade in counterfeited and pirated goods, the spokesman says. In 2009, NZ Customs seized in the order of" 270,000 counterfeit items including clothing, footwear and electronic goods.

He says there will be efforts to produce counterfeit products in relation to the upcoming Rugby World Cup and also referred to an unnamed 2005 study that estimated the losses due to copyright infringement for New Zealand's film industry at $70 million.

MFAT confirmed that software patents are on the table at ACTA, with some members wanting these to be covered. There is, however, no agreement on this.

The mandate for ACTA goes back to the previous Labour government in 2008, and has been re-endorsed by the present National government.

The process behind ACTA is no different to how New Zealand conducts other negotiations and treaties, and once the talks are concluded, the government can decide whether or not it wants to sign it. MFAT disputes suggestions the negotiations are being held in secret, saying the New Zealand government is pushing for the process to be as transparent as possible and welcomes feedback.

Once the negotiations have concluded, the text will be publicly available, and there will be a National Interest Assessment (NIA) that weighs up costs and benefits for government and parliament to review.

Penney, however, says the plurilateral treaty came about as the rich countries couldn't push a similar deal through multilateral bodies such as WTO and WIPO where developing nations are represented in larger numbers.

ACTA is likely to be used as a bargaining device with developing countries, Penney says.

Intellectual property lawyer Shera says New Zealand is a minnow in ACTA. "If we can get Australia, Canada and Singapore in some areas alongside us, then it makes a difference," as it will add weight to New Zealand's position, Shera says.

Shera says that the entertainment industry has a consistent position worldwide and will use copyright laws, termination regimes and TPM rules enacted in other countries to push its agenda in other jurisdictions. Countries need to be vigilant here, Shera says, and pay attention to what happens elsewhere.

New Zealand is also likely to be pressured into forcing ACTA on the Pacific nations, Shera says, by other signatories of the treaty.

The public briefing comes ahead of the eight round of ACTA negotiations, which will be held in Wellington between April 12 and 16. Commerce Minister Simon Power has called for submissions on digital rights enforcement before the Wellington ACTA talks with a paper published on the Ministry of Economic Development website.

Submissions on digital enforcement can be sent to trademarks@med.govt.nz.

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