Last week I attended a debriefing and meeting at the home office of the Department of Foreign Affairs and Trade (DFAT) in Canberra at the invitation of the Department after the submission of a Freedom of Information (FOI) request with respect to various types of documentation DFAT may have regarding the Anti-Counterfeiting Trade Agreement (ACTA).

In response to my initial FOI request, DFAT gave a notice to refuse my request under s24(1)(a), which provides inter alia, that an agency may refuse a request where it “would substantially and unreasonably divert the resources of the agency from its other operations.” Preliminary searches uncovered 21,000 pages. I’ve since resubmitted a narrowed request, and will refine it again after the consultation received both from DFAT and some kind gratis counsel, narrowing the request to something much more manageable.

In this notice to refuse, DFAT extended an invitation for a debriefing and meeting, mentioning that “[DFAT] are conscious of the importance of public dialogue on the ACTA.” That there has been a veil of secrecy the negotiations are shrouded in, and the worrying provisions that have been found in leaked documents meant that I, of course, accepted this invitation, and headed down to Canberra.

The conversation covered many topics, here are some of the interesting points.

The ‘P’ is for Piracy

Conceding that the agreement is much more than just counterfeiting, and it aims for much more than is suggested, an official ruminated that its purpose is a new standard for the protection of ‘intellectual property’ – including copyright, although patent isn’t seen by DFAT as something needing to be included in the agreement itself (just yet anyway). There is a much greater ambition for the so called ‘trade negotiation’ than I had understood, and undermines the continual reference throughout the meeting that the agreement is essentially ‘only a trade negotiation’. It is much more.

DFAT reiterated that the ACTA is not deceptively named, however conceding the ACTA was not named to appropriately reflect the content — it should perhaps contain the term ‘pirate’ in the title, possibly becoming the Anti-Counterfeiting and Piracy Trade Agreement.

There’s More Transparency Than Ever for a ‘Trade Negotiation’

The World Intellectual Property Organisation (WIPO) is the special arm of the United Nations (UN) structure that sets standards and treaties that regulate the production, distribution and use of knowledge, culture and information. What ACTA essentially could do, is undermine WIPO - it effectively creates the IPR (Intellectual Property Rights) equivalent of a ‘coalition of the willing’ – and undermines this structure and the mechanisms within it for the public to engage or observe.

Headquartered in Geneva, and currently with 184 member nations, it is the forum for the negotiation of a range of different intellectual monopoly mechanisms – including copyright, patent and trademark. It has its own issues, for instance with transparency – ranking last amongst the 10 intergovernmental organisations (IGO) assessed for transparency capability.

It fares slightly better with regards to external stakeholder engagement. There are mechanisms and arrangements for consultation and cooperation with any authorised non-governmental organisation (NGO). There is oversight, and any NGO can apply to be an observer, and subsequently participate in all meetings. There are commitments to engage civil society in WIPO activity, and there are even provisions for NGOs to speak. There is an institutionalised mechanism for engagement. Of course I believe the focus and goals of WIPO to be reviewed, and so do many others however there is a recognition of the need for dialogue, and in recent years developing nations have begun to question the inherent imbalances within the current framework and the consequences of the over monopolisation of knowledge.

ACTA has none of this — there is no oversight. There is no external stake holder engagement or allowance for participation. DFAT concedes there is no obligation for this. This is why ACTA is most dangerous. It represents a belligerent expansion of intellectual monopoly privilege, with scant regard for consequence or the opinion of the public, and little to mandate public consultation.

Canada is Primitive

DFAT raised the need to bring nations with inadequate protection – namely ‘pirate nations’ like Canada who were placed on “Special 301” watchlists by the USTR, who have ‘inadequate or non-existing laws for the digital environment’ and ‘is in no way prepared to deal with the Internet’.

I thought this was a strange comment, especially when you look to the defence given by the Computer & Communications Industry Association – which includes the likes of Microsoft, Google, T-Mobile, Fujitsu, AMD, eBay, Intuit, Oracle, and Yahoo. The statement provides that the US wrong to place Canada on the Special 301 watch list, and to use the mechanism as a stick to construct a worldwide DMCA.

What it does show, is a complicity within DFAT to advance the USTO agenda and kowtow to the industry driven agenda. So even where the need for public dialogue is recognised, how much dialogue is actually happening, and is DFAT listening?

Hey Relax, Guy

The standard for a trade negotiation I am assured, is that no nation enters into negotiation, or advocates for a higher standard than they already have. There is no intention to create a notice and termination/graduated response/three strikes type mechanism where by a household’s access would be terminated on allegation of copyright infringement. It was clearer than that – three strikes is not on the table.

What is troubling with those assurances and statements, is that they seem to conflict with what is possibly a current draft of the ACTA Digital Enforcement Chapter | [Mirror] which has been leaked, which DOES provide for “three strikes”. Footnote 6, makes it clear that negotiators intend that “policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider’s system or network of repeat infringers.”

Within signatory nations, ISPs would basically be obliged to implement notice and termination policies in order to attain the benefit of “safe harbours” or a limitation of liability. Here in Australia, the court has clearly stated that the mere provision of an internet service does not provide the means by which copyright infringement occurs, and that infringement can only be proved in a court of law.

So if ACTA does contain these provisions, it won’t necessarily mandate notice and termination style law, but it certainly does create an environment for notice and termination as the norm. If ACTA does indeed require a legislative response, then we are all entitled to engage, participate and observe these negotiations – it is a necessary pre-requisite if we are to knowledgeably exercise our democratic rights and understand the legislative direction of our elected representatives.

Any move to require extra-judicial termination or suspension of accounts, or even the provision of private and personal identifying details without a warrant or judicial oversight, upon allegation of copyright infringement is completely unacceptable. Peter Hustinx, the European Data Protection Supervisor raised concerns about privacy with respect to data sharing arrangements, the invasiveness of three strikes and called for a more transparent, open and public dialogue.

DFAT has publicly stated that there will be no three strikes. Officials have privately told me that there is nothing to worry about. ACTA will not contain within it a so called ‘three strikes’ mandate. That promise is looking increasingly hollow, and perhaps even an outright lie.

The ACTA is being negotiated, behind closed doors, by unelected representatives. It must be made transparent, or it must be stopped.