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Victories Against ACTA in the EU as Final Vote Looms

First published here.

In the last week we have seen four important votes as various committees in the European Parliament consider the merits of the controversial Anti-Counterfeiting Trade Agreement.

In what can be considered four important victories against the agreement, the Committee on Industry, Research and Energy (ITRE), the Committee on Civil Liberties, Justice and Home Affairs (LIBE), the Committee on Legal Affairs (JURI) and the Committee on Development (DEVE) all voted to recommend to the Committee on International Trade (INTA) that the European Parliament withhold consent to ACTA.

Whilst there are important votes approaching on June 20, where INTA will decide its recommendation to the European Parliament as it digests the ITRE, LIBE, JURI and DEVE recommendations and adds it’s own to the mix, the Australian Parliament’s Joint Standing Committee on Treaties (JSCOT) is currently considering the ACTA text. It’s report into the agreement is expected in late June, or early July.

The following is a supplementary submission to JSCOT, providing a distilled version of events in Europe in the hope the Committee considers those events in Europe in its final report, hopefully condemning the opaque process, the blunt and reckless signing of ACTA by the Department of Foreign Affairs & Trade, where a more considered sectoral approach should have been considered, one that respected fundamental freedoms like privacy, the freedom of expression and was aware of the need for fundamental and structural reform.

Reclaim Democracy, Defeat ACTA

As Europe erupts in protest following protests in Poland at the opaque and undemocratic accession to ACTA, Australians have been asking, what can we do?

La Quadrature ACTA Campaign Image


Australia continues to be part of the so called ‘Coalition of the Willing’, aiming to circumvent international fora in order to cement a more rigid and expansive enforcement regime like the one imposed in the AUSFTA, across the globe.

Treaty making and accession is largely the job of government, there is no constitutional requirement for parliamentary oversight, although as the document explains, the 1996 reforms went a little way to providing at least some parliamentary scrutiny. This really doesn’t help, because at the most formative stages, where it is imperative that the concerns of the public are included, diplomatic secrecy is still very much the default. Whilst insisting that openness, transparency, inclusiveness are paramount, these are generally empty platitudes. There are perhaps sensitive moments where some confidentiality is necessary for diplomats to be candid (and even this is debatable in the dawning of the transparent society) the negotiation and development of a copyright treaty, is not one of those moments. ACTA may begin to raise awareness of the relationship between the people and their government more broadly, and how the two interact and the levels of secrecy and information withheld from them.

At the very least, ACTA is where we must draw the line and reject the circumvention of democracy. It was only due to successive leaks and pressure brought to bear on governments and diplomats by NGOs, academics and political parties that ACTA became a shadow of its monstrous first drafts.

DFAT, however, continues to say “ACTA doesn’t mean any change for Australia”, but it does. It cements bad laws that DFAT allowed the US to impose on Australia via the AUSFTA, and when a belligerent industry is desperately clinging to it, something must be up.

In Australia, ACTA is currently under review by the Joint Senate Committee. It has been signed, but binding action has not been taken. Although the date for submissions have passed, you may still be able sneak a submission if the Committee Secretariat allow it, but otherwise, target the members of the Committee. All Australian citizens that are willing to act can let them know. Write to them. Tweet them. Call their office. Engage with them. Let them know, that you as an Australian citizen, do not stand for policy laundering and the circumvention of democracy by corporate interests. Any opposition we generate, fuels the fight in the EU. Reclaim democracy.


Australia’s Last Chance to Defeat ACTA

This article has been published at the ABC.

Today we saw thousands take to the streets in Poland in what has become an ongoing protest, the European Parliament’s rapporteur of the Anti-Counterfeiting Trade Agreement resign in disgust at the ACTA charade, the exclusionary and opaque process. We also saw the passing of what is possibly the last opportunity for Australians to stop the ACTA agreement cementing the expansive changes to laws in Australia imposed via the Australian United States Free Trade Agreement (AUSFTA).

There is some debate as to whether there will be any substantive change for Australia, i.e. are we going to have to change our laws? It certainly cements the already draconian laws we have, providing an environment for stricter enforcement and for an expansion of an already bad system, but that is not the biggest issue with ACTA.

The biggest issue is the secrecy in which the agreement was forged. The exclusion of civil society, consumer and civil liberties groups in formative stages, where a belligerent industry intent on disingenuously conflating issues like file sharing with counterfeiting were given open and unfettered access.

ACTA is an example of legislative negligence and a total disregard for evidence in policy making in Australia. Despite the Productivity Commission proclaiming that Australia should be seeking to exclude IP from bilateral and regional trade negotiations because of the obviously damaging changes to Australian law imposed by the AUSFTA, here is DFAT negotiating an agreement that entrenches those bad laws, just as it continues to include those bad laws in the Trans Pacific Partnership Agreement (TPPA). When queried, there is no study or economic assessment that supports the expansion or stricter enforcement of copyright and patents in Australia, except of course for untrustworthy industry research, manufactured to elicit legislative change by deception.

These sentiments, and others, were expressed in the Pirate Party’s submission to the Joint Standing Committee on Treaties. Although the due date has passed, Committee Secretaries are usually more than willing to accept late submissions. Make noise.


Props should go to @OlbrychtPalmer, @piecritic and @akfru for their work in the submission.

Letting in the sunlight…

The following documents were received from the Attorney-General’s Department under the Freedom of Information Act (1982). They pertain to a secret meeting between copyright industry lobbyists and Internet Service Providers (ISPs). Much of this information has not been previously made publicly available. All information made accessible to me is now publicly available.

Analysis will follow in time. Those that know, understand my current personal situation precludes me from committing time to commenting and analysing the issue. For all comments, I’d recommend contacting Pirate Party Australia as I am informed they will now analyse the documents.

UPDATE: Renai Le May at Delimiter  has quickly picked up on one of the central themes of the documents – consumers were and continue to be excluded from the process. This exclusionary approach is standard practice for the Attorney-General’s Department.

UPDATE 2: Mozart has come straight to the point — what does transparency and open government look like in modern Australia?

UPDATE 3: Michael Lee at ZDNet has a good summary of the issues and themes within the released documents.


Attorney-General’s Department Response

Response from Attorney-General

Letter from the Attorney-General dated 5 October, and received today, in response to my letter raising the lack of transparency and inclusion in their policy development process.


Ctrl C + Ctrl V — 5th Largest EU Group Adopts Pirate Perspective

In an extremely promising development, and a huge victory[1] for the Pirate Party movement, an entire EU Parliamentary group has adopted Pirate principles. The Greens/European Free Alliance, of which Christian Engström, Piratpartiet’s MEP is a member, has listened to the reason of the Pirate movement and adopted the Pirate Party’s approach to copyright. I think there is issues with some of it,[2] but it is hugely positive.

Summarised by Rick, the Greens/EFA now hold as policy:

— It must be made absolutely clear that the copyright monopoly does not extend to what an ordinary person can do with ordinary equipment in their home and spare time; it regulates commercial, intent-to-profit activity only. Specifically, file sharing is always legal.

— There must be exceptions that make it legal to create mashups and remixes. Quotation rights, like those that exist for text, must be extended to sound and video.

— Digital Restrictions Management should preferably be outlawed, as it is a type of fraud nullifying consumer and citizen rights, but at least, it must always be legal to circumvent.

— The baseline commercial copyright monopoly is shortened to a reasonable five years from publication, extendable to twenty years through registration of the work.

— The public domain must be strengthened.

This is something we’ve always said was part of our goals. To make other parties think about our position, and as Rick says, this is delivery. This is something the Green movement around the world will now be forced to look at, and consider.

Will the Australian Greens consider? You betcha. They already are. As a movement in its infancy, that we are already forcing reactions from political organisations that have now been around for almost 30-40 years is amazing, and as individual parties develop, we are seeing what the possibilities are, and how we can differentiate the movement from any other.[3]

Lack of Transparency & Inclusion Raises Questions About Integrity of Democratic Process


On the August 24, The Australian revealed that the Attorney General’s Department was convening meetings with stakeholders — except that it had excluded one very important group. You.

The copyright lobby and its many faces and fronts are being given an audience with the Attorney General’s Department and platform on which to pressure ISPs into an industry code for ‘dealing’ with file sharers. Of course, we know what that means – the termination of access on their accusation.

What is very worrying, is that this is being conducted behind closed doors and that the government seems very willing to place the legislative gun to the head of service providers. If there is one thing that the government is transparent about, it is that it will pull that trigger, in attempting to enforce an antiquated monopoly mechanism, with no regard to clear issues with human rights and civil liberties.

We cannot rely on ISPs to protect consumers — when push comes to shove, they will capitulate, so it is important that civil society and political groups and parties all sing the same song — termination, suspension or limitation of access to the Internet for allegations of copyright infringement, or even breaches, are not acceptable or proportional.

Below is a letter sent to the Secretary of the Attorney General’s Department, Mr Wilkins.

Dear Mr. Wilkins,

I write to you seeking clarification of certain issues raised in an article authored by Andrew Colley, published in The Australian on August 24, 2011 entitled ‘A-G in call for talks on online piracy’.[1]

The article cites a spokesperson for the Attorney General’s Department indicating that a meeting had been convened in order to garner the differing positions, need and scope of any governmental intervention.

It is very concerning that there has been no public mention of the meeting convened between stakeholders and that amongst the published list of invited participants there appears to be no representation from consumer organisations or civil society – in fact, the meeting appears to be convened with the specific intention to exclude these stakeholders.

It is even more concerning that organisations like the Australian Content Industry Group, and the dubious studies they have commissioned, which have subsequently been used by the Attorney General as justification for the policy direction of the Australian Government[2] and only released by the organisation after Freedom of Information requests were made by myself to the department, are being given unfettered access, facilitated by the Attorney General’s department to lobby government and industry for the development of an industry code, or to effect legislative changes.

The willingness of government ministers and the Attorney General to so readily facilitate the development of disconnection mechanisms for alleged copyright infringement like those operating in New Zealand, the UK or France, is worrying.

The termination or limitation of access to the Internet on the grounds of violation of intellectual property laws, in this case, copyright, is completely disproportionate, ineffective and a violation of human rights.

That this is done without the oversight or inclusion of civil society in an open forum raises questions regarding the integrity of the democratic process and the willingness of the government to engage and listen to alternative perspectives, economic analysis and academic study.

It is imperative that the government acts in the interest of Australian citizens, recognising the importance of Internet access, protecting the rights of Australian citizens to seek and impart information, knowledge and culture, and works to safeguard due process and fundamental rights. It can do this by being transparent and open in its decision-making and policy development process.

Kind Regards,

Rodney Serkowski

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