PublicACTA hammers out 'Wellington Declaration'

Critics of intellectual property treaty call for independent national impact analysis

About 120 attendees at the PublicACTA conference gave up nine hours of Saturday to hammer out “The Wellington Declaration” — intended to be a constructive criticism of the Anti-Counterfeiting Trade Agreement ACTA).

The Declaration stresses the need for an independent impact analysis of ACTA’s operation in New Zealand before this country signs the treaty.

A national impact analysis is provided in the ACTA process but this is likely to be performed by officials from the Ministries of Foreign Affairs and Economic Development who have assisted in the negotiations, said a former public servant at the meeting; they are unlikely to be very critical of something they helped put together, he suggested.

See also: Geist warns of ACTA sovereignty setback
ACTA is an international treaty being negotiated between major powers the US, EU and Japan as well as others including Canada, Australia. Mexico and New Zealand. Its original focus was on counterfeit goods, but leaked drafts have revealed a much broader scope, raising concerns of an intellectual property crackdown online.

The Declaration also promoted the World Intellectual Property Oragnisation (WIPO) as the most appropriate venue for any such treaty negotiation.

"We note that the World Intellectual Property Organisation has public, inclusive and transparent processes for negotiating multilateral agreements on (and a committee dedicated to the enforcement of) copyright, trademark and patent rights, and thus we affirm that WIPO is a preferable forum for the negotiation of substantive provisions affecting these matters."

The Declaration urges that ACTA must address exceptions and limitations to copyright, such as fair use and fair dealing, "to maintain the balance that is fundamental to copyright". It also says that technical protection measures (TPMs) should not themselves be protected in the treaty and that TPMs should not infringe on or limit rights to use or access copyright material in a manner that would otherwise be permitted.

It was crucial, said PublicACTA keynote speaker Michael Geist, that the declaration avoid taking too oppositional an attitude. That, he told delegates, would make PublicACTA too easy to dismiss as a fringe lobby, pro-counterfeiting, opposed to copyright and in league with pirates, terrorists and other groups alleged by ACTA champions to benefit from loose legislation.

Canadian lawyer Geist and fellow keynoter Kimberlee Weatherall, senior lecturer at Melbourne University’s School of Law, tackled some of the hot-buttons such as the three-strikes procedure for punishing repeat offenders — it may only be a footnote in leaked drafts, but “if you dig deeper, it’s there,” Geist said — and less well-canvassed aspects, such as ways in which ACTA materially extends provisions under the TRIPS agreement, rather than merely strengthening enforcement of the existing provisions. Secondary liability of intermediaries such as ISPs has not been a feature of international treaties to date, says Weatherall.

She suggested that in view of existing protection under TRIPS, adoption of ACTA would not give copyright owners material additional protection, while it would impose major strictures on consumers and intermediaries.

Strict control of methods for circumventing technological copyright protection measures on digital media threatens to affect freedom to do legal acts such as research and review on copyright works, the keynoters pointed out.

ACTA, the keynoters and others said, should return to its original purpose and leave copyright, trademark and patent protection to existing laws and treaties.

The meeting als called strongly for more transparency and the release of drafts of the ACTA text. The official ACTA Wellington meeting has discussion of transparency set down for its last day, Friday, April 16.

The keynotes were followed by general discussion among the delegates and a four-person panel (consultant Julian Carver, InternetNZ policy director Jordan Carter, InternetNZ Victoria University Cyberlaw Fellow Jonathan Penney and the Creative Freedom Foundation’s Bronwyn Holloway-Smith).

After a break for lunch, groups of delegates at the dozen tables were each handed two topics on which to formulate concise position statements. Each of the statements was then critiqued by the whole body of attendees. Moderator Nathan Torkington managed the process efficiently: “any more amendments for this section? Going once…going twice…Yes Michael [Geist] you have a suggestion?…Right, looks like we’re finished with that one.”

The Wellington Declaration was in its final form not long after the 6pm deadline originally set down.

Disclosure: Stephen Bell took a small active part in the debate, as a member of the table that drafted the parts of the Wellington Declaration dealing with technological protection mechanisms and privacy protection. He also offered criticism of some of the wording of other sections.

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