Opinion: Countering the Anti-Counterfeiting Trade Agreement

Kiwis should care as treaty is about much more than counterfeiting

Most New Zealanders, technologists or not, have probably never heard of the Anti-Counterfeiting Trade Agreement, also known as ACTA. And even if they did, why would they care?

Counterfeiting, which invokes images of funny money, fake merchandise or esoteric international criminal enterprise, sounds more like a topic of discussion for the next law enforcement conference, rather than for around the water cooler at work.

However, people should care. Not only because New Zealand is a likely signatory as a participant in ACTA negotiations, but the treaty, despite its name, covers matters much closer to home: copyrighted material and the internet.

That is, ACTA is not really about trade or counterfeiting, though trade is a key way the treaty will promote its actual aims. Rather, it is essentially a new international copyright treaty that aims to clamp down on illegal copying and piracy of music, movies, software and other content that many New Zealanders use and share online everyday.

Pushed by the US, European Union, Japan, and other states with established content industries, the latest round of ACTA negotiations took place last week in Seoul, South Korea, with little fanfare or media coverage despite the many countries involved including the aforementioned along with New Zealand, Canada, Australia, Jordan, Korea, Mexico, Morocco, and Singapore.

The most troubling aspect of ACTA is how secretive its content and negotiation has been. Until last week — when actual excerpts were finally leaked — no official drafts had been released or circulated for public scrutiny, beyond vague summaries. The US trade representative, who wrote the sections of ACTA dealing with the internet, refused to even share a draft with negotiating partners until the latest round of talks. And while the US trade representative did disclose a draft to industry stakeholders in Washington, those who got a glimpse had to sign strict non-disclosure agreements. As Professor Michael Geist might say, given the veil of secrecy, you would think ACTA was a nuclear test ban treaty.

Now that some rough drafts have leaked, however, it’s easier to see why secrecy was preferable. While not nuclear, some of the proposed sections are no doubt politically radioactive for some states involved, including New Zealand.

The proposed sections for dealing with online copyright infringement amount to a mass export of the American legislative model — a “global” version of the US’s unpopular Digital Millennium Copyright Act. ACTA would require signatory states to legislate, among other things, a “notice and takedown” system (where content must be removed by ISPs without proof of actual infringement); special criminal and civil penalties for circumvention of technical protection measures; and a “three strikes” policy where three allegations of copyright infringement would lead to mandatory internet account termination.

That means if your son is caught copying his favourite video game software three times, the family may lose its internet service.

Why is all this a concern to New Zealand? If signed and ratified in this form, ACTA would effectively undercut months of public consultation and domestic policy deliberation. Only recently, the government concluded large-scale consultations on its draft for section 92A, a provision that would deal with copyright infringement in a way that is fundamentally different than the model envisioned by ACTA.

Instead of notice-and-takedown, section 92A involves the Copyright Tribunal. Instead of “three strikes”, section 92A makes account termination merely one option among several remedies for repeat infringement. For all of its shortcomings, section 92A at least remains a product of New Zealand’s democratic and political process. ACTA would change all this, replacing a solution made in New Zealand, with something made in South Korea, or wherever the next round of negotiations take place.

Other commentators, with good reason, have argued that New Zealand should not sign ACTA. And in the short term, this is probably the best way to shed some light on the concerns the treaty raises: with a little heat.

But over the long term it may not be enough. The trouble with international legal instruments like treaties or trade agreements — even if only bilateral or plurilateral — is they have a tendency to quietly but effectively shift international legal norms, especially when countries involved are wealthy and powerful.

Though ACTA is not a multilateral trade agreement, its long-term goal is no doubt to become multilateral in scope by getting most countries on board, including the developing world. This will be done through an ever-expanding system of trade-related incentives: if you want access to our markets, you need to sign onto ACTA. Treaties like ACTA influence norms in other ways too, as a source of international law or guidance to interpret other treaties and agreements, and settle international disputes.

So no, New Zealand should not agree to a treaty that would repudiate its own legislative process. But one country taking a stand, forgoing its trade interests alone by dropping out of negotiations is not enough — a multilateral effort by several participating countries is needed to reign in ACTA’s sweeping scope, or put the breaks on things.

And neither is going to happen unless people take notice, demand greater transparency and start asking their governments tough questions.

Penney is InternetNZ Senior Research Fellow at VUW Law School

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