Tagged: DFAT

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.

ACTA: Still troubling…

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.

Ongoing Transparency

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.

ACTA, DFAT and FOI

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.