ACTA briefing reveals little, details kept secret

No time for 'structured feedback' at meeting, Catalyst IT's Christie says

The Ministry of Economic Development still refuses to reveal the draft text of the Anti-Counterfeiting Trade Agreement (ACTA) or fully define the position that New Zealand is taking in the negotiations.

Ministry of Economic Development (MED) spokesperson George Wardle, at a briefing in Wellington today, said government could not release the draft text of the treaty as all parties to the negotiation had agreed to keep it confidential. Computerworld sought access to the briefing, but media were excluded.

“We asked whether they could at least publish New Zealand’s position on the agreement,” says Don Christie of software company Catalyst IT. “We were told that could compromise negotiations.”

The meeting was “way too short”, running for little over an hour, says Christie and while time was allocated for questions, “there was no time for structured feedback”. He wanted to ask about the definition and identification of a “rights-holder”, seeing disputes blowing up between competing “owners” of software intellectual property in particular, but there was no chance for a detailed discussion of such aspects, damaging as they may be to developing industries.

Officials “kept talking about the need for strong rights enforcement, but they didn’t seem to appreciate how claims to such rights can be used as a competitive weapon”, Christie says.

With the likelihood that a multilateral free trade agreement will be negotiated in the near future involving New Zealand, the US and other Pacific countries, Christie is anxious that ACTA could erect “a new set of trade barriers protecting the US position on IP” for industries newer to NZ such as software, recorded music and film “in return for improved access for milk powder”.

Richard Wood of InternetNZ, who attended the meeting, suggests that might be too simplistic an analysis, since there are other parties to ACTA, such as the European Community, who have no stake in the potential Pacific free trade agreement.

Wood sees some positive points in the meeting, such as assurances that NZ is pushing for greater openness in negotiations and that ACTA is only targeting commercial-scale infringement. “We were assured that ACTA would not impact Section 92A [of NZ’s Copyright Act],” he says; and this is believable, since s92A looks like achieving its final form this year, whereas ACTA negotiations will take a lot longer.

“I heard a lot of recording-industry rhetoric,” Christie says. “I’m used to hearing that from lobbyists but not from supposedly neutral public servants.”

While no draft text has been officially released, leaks have shown that ACTA has gone far beyond anti-counterfeiting to be a general rewrite of the rules of copyright in the name of international harmonisation, says Thomas Beagle of the lobby Tech Liberty.

“New Zealand has already been through a small-scale version of this with the attempts to insert a ‘three accusations and you're out’ policy into section 92A of our copyright law,” he says. The originally suggested form of Section 92A was defeated by a broad coalition of artists, internet users and others, led by the Creative Freedom Foundation.

Government is poised to make an announcement on a replacement for s92A this afternoon.

Beagle says the original Section 92A was defeated “because it followed our normal democratic process. ACTA is an attempt to work around this, it's being negotiated in secret to avoid opposition. This secrecy is anti-democratic — it's not how we do things in an open society like New Zealand.”

An opportunity will be provided to local organisations to make submissions on the “digital enforcement chapter” of ACTA, with a deadline of February 10, but a submission in response to a text that has not been released is difficult, Christie says.

Foreign Affairs and Trade Ministry negotiator Peter Ferguson claimed at the meeting that New Zealand is pushing for the negotiation process to be more transparent.

The agreement is conflating copyright infringement with counterfeiting, when they are two very different matters, Christie says. The negotiators talk of only punishing infringement on a commercial scale, but there is no definition of what “commercial” means in the context, he says; “it’s not defined in our Copyright Act”.

Wood for InternetNZ agrees that a firmer line needs to be drawn between digital copyright infringement and counterfeiting of physical goods. There appears to be good information on the economic impact of the latter but a deeper analysis of both the economic and cultural impact of copyright measures is needed.

The most far-fetched reason given at the meeting for strict IP protection measures, several attendees report, was that trading in illegal material is financing terrorism.

“If that’s the case,” says Christie “we should immediately stop buying Saudi Arabian oil,” since some of the 9/11 terrorists were Saudis.

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Tags richard woodDon ChristieInternet NZACTA

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