Last week, the Department of Foreign Affairs and Trade (DFAT) held an information session in Sydney, upon the finalisation of negotiations of the Anti-Counterfeiting Trade Agreement (ACTA). We attended, we asked a few questions, and received a few interesting responses. But nothing overly new.
This is a Frank and Transparent Discussion, But…
A little concerning early in the piece, was the statement by the meeting chair that the apparently frank and transparent discussions that were to ensue were to stay in the room. More than once, there were warnings that communication devices were not to be used to relay negotiating positions, or the responses of the bureaucrats answering our questions. At this point, I considered leaving the debriefing as Engstrom had in Brussels. What is the point of a debriefing that does not allow attendees to discuss the broader implications and impetus for the agreement with the community? This, in my opinion, completely opposes the rights that citizens have to demand transparency from government agencies, and the departmental personnel representing them.
However, in the end, there was no non-disclosure agreement offered, and I thought it was in our interest that we hear for ourselves what those in the castle were doing. I had attended a previous consultation offered to me by DFAT, and it was somewhat helpful in understanding the context and impetus of the agreement.
What exactly do you mean by ‘cooperative efforts within the business community’ in the agreement? Can this be interpreted as ‘three strikes’?
Whilst it was reiterated that the ACTA ‘treaty’ would not drive any substantive change in Australian law, there was no real answer as to what a ‘cooperative effort within the business community’ would entail. The Attorney General’s Department (AGD) revealed that various industry bodies, as of course is their strategy, had made representations in favour of the government legislating for three strikes. The Department is looking at doing ‘something’ in this area. We know Senator Conroy has previously mulled over ‘three strikes’ but the preferred outcome for ‘cooperation’ is an industry code. I’ve been skeptical of a ‘voluntary’ code and it seems at least a few in the industry feel the same way.
So whilst ACTA won’t demand immediate changes to Australian law, despite protests from DFAT, it does add to an environment that encourages changes in favour of a more strict enforcement. The AGD is slowly loading its legislative gun, and will put it to the head of industry — come to an arrangement, or we’ll do it for you. It of course all hangs on what the final word is in AFACT’s crusade against iiNet.
Mischievous Bloggers and Pesky Civil Libertarians
Bemoaning the scrutiny of civil society, negotiators put concern regarding the agreement to mischievous bloggers that had misinterpreted the intent of negotiators, like Jim. Thoroughly disappointed with the remnants of the digital enforcement chapter, those present reminisced about the questionable ‘footnotes’ that enumerated graduated response, which were simply attempts to craft safe harbours, and what might be required to guarantee them, which of course, included three strikes. Those present maintain that the extra-judicial termination of account holders from the Internet was never sought by any party…
So whats the point? Does this stricter enforcement benefit Australia?
We asked the panel whether there had been any studies conducted by the government, or any department as to what benefits stricter enforcement had brought to Australia as a result of the AUSFTA, it being cited as a reason as to why ACTA would not change Australian law now — had there been any attempt to quantify the benefit or damage caused by by the expansion of ‘intellectual property’ protections, for instance the extension of copyright terms, or the legal foundations granted to DRM. Was there a basis to not only accept this more comprehensive lock down, but entrench it?
The question was entirely avoided — there has been no study commissioned, there has been no investigation into the effects, we have to take the good with the bad, ‘IP was just a small part of a larger agreement, and we have to take the good with the bad — the government only acts for the benefit of Australia.’ Right.
The Department’s poor performance in negotiating the bilateral trade agreement with the US left Australia with many substantive changes that saw an unnecessary lock down of information, culture and knowledge at the behest of the US. In 2005/6 DFAT bought an old rust bucket from the US, at a hugely inflated price. They have now resprayed it, rebadged it and are selling it as ACTA, selling it as a victory by the Department, a diplomatic coup. You can put a tuxedo on a goat…
Circumvention of International Frameworks
As I gathered at my previous debriefing ACTA will be a used as a stick. Pirate nations like Canada must be made to fall into line, and whilst it consolidates IPR lockdown in the developed world, there is a serious concern that development and innovation will be stymied in the developing world, further entrenching and exacerbating imbalances.
In any event the mere existence of ACTA would if it is signed undercuts the legitimacy of WIPO and the WTO. It signals very strongly that not only are the developing countries unable to control the rent seeking of a few powerful corporations in their own countries but that they are willing to use their power to further that rent seeking in the rest of the world.
— Andrew Rens
And this is the clear intention of negotiators, they ‘began at a more defined starting point’, and rather than ‘seeking to negotiate with 100s of nations’ and attempting to reconcile the divergent views on what role IPRs can and should play, they have sought to create an agreement of their own, external to the relatively democratic and inclusive frameworks already in existence.
We raised concerns about the clandestine nature of the negotiations. Interestingly someone countered that they had never seen the extent of transparency for a trade negotiation. I don’t accept that even this level of so called ‘transparency’ is sufficient, and hold even less respect for the view that ‘this is just the way international trade treaties are negotiated’. Perhaps it’s time that changed, and that the ‘Declaration of Open Government’ and its principles of informing, engaging and participating is recognised as something a little more binding than a hollow platitude.
Of more than a little concern is the ongoing transparency – with the EU now taking first steps in making the agreement a reality (although by no means does it mean the battle is over) — concern turns more to future operation of the so called “ACTA Committee”.
There have been continuing complaints regarding the transparency and inclusiveness of the ACTA negotiation process. Since the formal announcement of the negotiations on October 23, 2007 the process has been conducted in relative secrecy and to the exclusion of civil society.
The institutional arrangements that create the “ACTA Committee” do not resolve this concern by mandating openness, transparency and inclusion of civil society. Leaked draft papers provide insight into some of the outcomes that were initially sought through the ACTA process, and it is imperative that an avenue for community and stakeholder consultation is mandated by these institutional arrangements.
What happens now?
The agreement goes to ‘legal review’ — which is on right now at the Observatory Hotel, in Sydney. (Sorry about the weather!) The most important decisions are made here, things like which font is used for the agreement. A friend of mine has proposed wingdings.
After this, the agreement will go to Cabinet and the Joint Senate Committee on Treaties which will take submissions and make recommendations. However, it is convention that the Minister/Cabinet retains the ultimate say as to whether Australia will sign this treaty.