ACTA not linked to free-trade agreement, say officials

MED officials deny a connection suggested in NZ Open Source Society submission

Officials negotiating New Zealand’s position on the Anti-Counterfeiting Trade Agreement (ACTA) intellectual-property treaty say they have no perspective on the separate negotiations over the Trans-Pacific Partnership trade agreement. Nor would they be involved in any trade-off of ACTA concessions against broader free-trading rights.

“I agree in terms of free-trade agreements that governments do have some ability to trade off one area against another in order to conclude an agreement; but we don’t have that question here in the ACTA context,” says one of the negotiators who, with others spoken to, asked to remain anonymous.

“This negotiation is stand-alone,” says another. “It is dealing with an issue of trade enforcement for piracy and counterfeiting; it is not linked to any other negotiations; it started at a different time. There is no suggestion that us joining this is a prerequisite for some other agreement, now or in the future.”

The eighth round of ACTA negotiations are under way in Wellington this week.

Questions on a possible ACTA-PPTA link were put last month to Trade Minister Tim Groser’s staff, who first redirected Computerworld to the ACTA negotiators. When they declined to respond, we resubmitted the questions to Groser’s press secretary. A reply is still awaited.

A New Zealand Open Source Society (NZOSS) submission to the MED, released last week, also draws a connection between free trade negotiations and ACTA, quoting a Sydney Morning Herald article that says Australia made several modifications to its intellectual property laws, including modification of the term of copyright protection, to gain an agreement.

The author of the submission, NZOSS vice president Peter Harrison, states the US is very interested in having countries adopt copyright legislation that will give its content companies protection from the “forces of inevitable progress”.

“ACTA is simply a conduit to get New Zealand to implement legislation that it would otherwise need to negotiate over,” he writes.

He says money lost to copyright infringement in New Zealand is “pocket change compared to the losses we will incur from being too ready to sacrifice these important political concessions”.

“If supporting ACTA will undermine our own leverage, potentially costing us the ability to reduce US subsidy support of their dairy farming industry, why are we involved?” he asks.

Meanwhile, a statement signed last month by senior trade-union officials from New Zealand, Australia, Singapore and the US raised the question of intellectual property rights becoming an element in the free-trade negotiations.

The trade-unionists express concern over the area of generic medicines, which is another significant element in ACTA negotiations.

“Intellectual property rules and other provisions in trade agreements have been used to weaken the ability of governments to supply medicines to their citizens at an affordable cost,” says the trade-union statement. “We oppose any government efforts in the context of the TPPTA to negotiate language that would reduce access to affordable medicines.”

Groser’s response was that New Zealand’s aim is a trade deal that “achieves greater economic integration in our region while maintaining our right to regulate important public services.”

When Computerworld raised ACTA with New Zealand Council of Trade Unions President Helen Kelly (New Zealand’s signatory to the unions’ statement) she pointed to the possible discontinuation of internet access for repeat online infringers of copyright.

Kelly says unimpeded broadband access could be another right worth taking into account in the unions’ position on the free-trade agreement. But there are many and complex points likely to be raised, with priorities having to be established, she says.

The issue of internet disconnection after three (or any other number) of copyright infractions drifts persistently in the background of ACTA, despite efforts by negotiators to downplay it.

The proposed version of Section 92A of NZ’s Copyright Act requires a Court hearing before a persistent offender can be disconnected, and then only for six months maximum.

“We are not seeing any proposals [in ACTA negotiations] that would impact on the government’s ability to implement that regime,” says an ACTA negotiator.

The officials are adamant that “what is legal now in New Zealand will remain legal” if the country signs up to ACTA. Any amendments required to domestic legislation will be in “enforcement procedures” rather than questions of legality, they say.

However, at a subsequent InternetNZ meeting with New Zealand ACTA negotiators in Wellington, consultant Colin Jackson likened the situation to jaywalking; strictly speaking it is illegal but often done, he says. An increase in enforcement would make a difference to the lives of citizens practically on a par with a change in the law.

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