news The Pirate Party of Australia has made a submission to the Federal Government recommending it reject the controversial Anti-Counterfeiting Trade Agreement (ACTA) signed this month by the European Union, despite the fact that Australia actually signed the deal in September last year.

ACTA is an agreement between a number of major countries which will establish international standards for intellectual property rights enforcement — setting up an international legal framework for targeting counterfeit goods, medicines and online copyright infringement. It will see a new international IP governing body to handle the area.

In the wake of the demise of the Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA) in the US over the past month, following widespread protests, international attention has turned to ACTA, which many protestors see as implementing similar controls over the Internet as SOPA and PIPA. The European Union signalled its acceptance of ACTA this month, while Australia signed up to ACTA in September last year. A number of other countries, such as the US, New Zealand, Canada, Japan, Singapore and South Korea are also on board.

However, this week, the European Union’s key investor of ACTA (dubbed a rapporteur) resigned his post in protest over the signing, denouncing the lack of civil society participation in the development of ACTA and a refusal to take part in what he said was a “masquerade”.

In a media release today, the Pirate Party Australia noted it had filed a submission to the Federal Parliament’s Joint Standing Committee on Treaties’ Inquiry into ACTA (available online in PDF format). The wording of the submission is scathing for Australia’s participation in the agreement.

“Perhaps the most troubling aspect throughout the development of ACTA has been the opaque and clandestine nature of the entire process,” the organisation wrote. “Whilst the Department of Foreign Affairs and Trade [which is lead negotiator on ACTA] has stated that a certain level of confidentiality is required for trade negotiations, and while there is some ground to perhaps enable a certain degree of secrecy where complex issues may warrant negotiations in confidence, there is no conceivable rationale for the level of secrecy that the Department has maintained for what is essentially a copyright treaty.”

“The exclusionary approach by the Department – the sheer lack of public participation in an area of law that has such potentially large public interest issues – is especially troubling for the Australian democratic process, particularly where earlier leaked drafts contained especially draconian provisions. The secretive process directly contradicts the Declaration of Open Government that has placed primacy on principles of informing, engaging and participation.”

The Pirate Party pointed out that DFAT had not released submissions made to it by stakeholders, industry and consumer groups regarding the negotiation of the agreement and had also rejected applications for the submissions under Freedom of Information laws.

The Pirate Party highlighted the fact that developing countries such as India and Brazil actively opposed ACTA because of the threat to generic medicines which the countries relied on for their healthcare systems.

Some of the more specific concerns which the Pirate Party has in relation to the ACTA agreement include the fact that the agreement does not make any mention of the cultural rights of citizens, preferring to focus on the rights of intellectual property owners, that there were varying levels of agreement about what the value of damages should be in the case of those who have infringed copyright, that the privacy rights of those who have allegedly infringed copyright could be violated, and that the use of digital rights management clauses would make it “incredibly difficult” for legitimate purchasers of content to make backups of that content legally.

“The negotiations for ACTA were held in secret and excluded representatives of key stakeholders, particularly IT and consumer groups. This secrecy continues to this date, with submissions and other information regarding the Department of Foreign Affairs and Trade’s involvement in the negotiations remaining secret,” concluded the Pirate Party in its submission.

“Movie and music industry groups and representatives were granted exclusive access to draw up an agreement protecting their vested interests, with little to no regard to privacy or detriment to consumers and the public interest. This process of exclusion, opacity and protection of belligerent industries’ interests can only lead to one conclusion — the trade agreement is illegitimate and should be rejected on this reason alone. To accept this agreement is to condone the undemocratic process in which it was forged.”

“The Australian government is elected to serve the Australian people, not the interests of multi-national media and pharmaceutical executives.”

In a media release on 30 September, the Federal Government took a different view of ACTA, with Trade Minister Craig Emerson stating at the time that the agreement (which Australia had taken a “leading role” in the negotiation process to establish) “showed Australia’s determination to secure international cooperation to develop trade in the most innovative areas of the global economy”.

“ACTA builds on World Trade Organization standards to promote international trade in legitimate intellectual property, by elevating standards of enforcement,” Emerson said at the time. “This treaty will help stem the burgeoning global trade in counterfeit and pirate materials, worth many billions annually.”

Emerson said at the time that the treaty would support “market-oriented innovation” in Australia and other signatory countries by giving creators and exporters the confidence to promote their products overseas without fear of counterfeiting and piracy. “The treaty will also help stop the unwitting purchase by consumers of low-quality counterfeit and pirated material,” he said.

“The implementation of ACTA will not require legislative changes in Australia,” the Government’s media release at the time read. “Rather, trading partners will adapt their laws to the high standards of IP enforcement that already apply in Australia.”