news The Greens have demanded that Australia’s Government cancel its participation in the controversial Anti-Counterfeiting Trade Agreement international treaty in the wake of an expected imminent rejection of the proposal by the European Union and significant and ongoing global protests against a number of its terms expected to harm Internet freedom.

ACTA is a multinational treaty which aims to establish international standards for the enforcement of intellectual property rights, including setting a framework to tackle counterfeit goods, generic medicines and copyright infringement. It was signed last year by a number of large first-world countries such as Australia, Canada, Japan, Singapore and the United States.

However, the general public has been excluded in many countries from the process of negotiating the treaty, and critics have slammed it, noting it could potentially affect digital rights, freedom of expression and privacy. Late last week, European Commissioner for the Digital Agenda Neelie Kroes said that ACTA was unlikely to come into effect in Europe, despite the fact that most of the 27 EU states have signed the treaty. The Verge has reported that ACTA is currently being investigated by the European Court of Justice over concerns that its privacy provisions could breach European law.

In Australia yesterday, Greens Communications Spokesperson Scott Ludlam, who has been a strident critic of ACTA, participated in a fraught exchange in a hearing about the treaty (transcription in PDF here) with officials from the Department of Foreign Affairs and Trade and the Attorney-General’s Department, which have been overseeing Australia’s participation in ACTA.

Ludlam told the bureaucrats that the Joint Committee on Treaties, which he sits on, had taken a substantial weight of evidence, “much of it pretty damning”, from experts in intellectual property.

“A lot of that evidence has been strongly negative,” he said. “I have lost track of the exact number of times we have been told that this thing is broken — it cannot be fixed, it cannot be amended, and it needs to be rejected in its entirety. Presuming you have had the time to review that evidence, has any of the evidence that has been put to this committee by experts in this field giving you cause to maybe pause and reconsider some of the things that we are signing up to?”

In a separate statement ahead of the committee hearing yesterday, Ludlam said the “ACTA bandwagon has crashed” and it was “time for Australia to get off”. “I am hoping [DFAT] will take a second look, and conduct a proper analysis on the threats to privacy, cheaper medicine and our economic interests posed by this Agreement,” he added. “If we can persuade the Government to at least conduct a proper National Interest Test that will be a good start.”

“In the meantime, this proposed Agreement is getting a bucketing in Europe and will probably never see the light of day, and here in Australia the Committee has taken compelling evidence from a range of experts that sharply contrast with the Australian Government’s uncritical and utopian position on copyright enforcement.

However, in the committee hearings this week, government officials supported Australia’s participation in ACTA, and denied the treaty would have a negative impact on IP law or Internet freedom in Australia. George Mina, an assistant secretary with DFAT, said he understood the European concerns around ACTA, but said Australia’s legal environment wouldn’t be affected by the treaty.

“I think it is fair to say that many of the concerns that we have seen on the street in German cities in recent weeks and the last couple of months pertain to internet freedom questions,” he told the committee. “You have seen a large number of young people very concerned about the potential impact on internet freedom questions. There is no doubt about that.”

“I have addressed some of those questions before and I can do so briefly again and just make the point that nothing in ACTA impacts on internet freedom in Australia. Our laws comfortably meet the requirements set out by ACTA in respect to the enforcement of intellectual property rights in the digital environment. So absolutely nothing will change in respect to internet freedom.

“I can say, without maligning the views of those who choose to protest, in respect of the Australian jurisdiction there has been some misunderstanding about the impact of ACTA on internet freedom. There is absolutely no doubt about that. I have spoken very directly to many of the people who are making some of these claims and tried to take them through the text .. There will be no change. So there will not be an impact on internet freedom whatsoever in Australia.”

Mina said that in general, Australia’s regime for IP protection and enforcement reflected a “balance” between the objectives of creating and distributing knowledge and the rights of producers on one hand, and the legitimate interests of users of IP on the other hand. He said that during the ACTA negotiations, there was “significant pressure” from other negotiating partners to “alter that balance in certain respects”.

“We can attest to the fact that Australian negotiators fought hard in the negotiations in order to protect the balance inherent in our law,” Mina added. “We were ultimately successful in doing so. We were of course also successful in ensuring that same balance was reflected in the emerging international standard. We were very pleased that we were able to achieve this result for Australia. There will therefore be no regulatory change whatsoever in Australia as a result of ACTA.”

However, others didn’t appear so sure that ACTA would have no impact on Australian law. Specialist IP lawyer and academic Luigi Palombi told the committee hearing yesterday that ACTA was “a terrible document” that laid the framework for future changes.

“The legislation may not necessarily come directly through ACTA,” he said. “It may come through subsequent agreements—for example, the trans-Pacific partnership agreement that is currently being negotiated. ACTA is more like a vehicle for change—it creates the environment for change—but the changes may come through other agreements. This is the real problem with ACTA. That is why I say that you cannot look at ACTA in isolation from what already exists in terms of Australia’s international obligations in relation to intellectual property and those that are currently being negotiated or those that may come in the future.”

“To read ACTA in isolation to the plethora of other international agreements such as TRIPS, the US-Australia Free Trade Agreement and the forthcoming Trans-Pacific Partnership Agreement also being negotiated in secret talks is to misunderstand the role which ACTA will play in a carefully crafted strategy designed to take more and more of the public domain out of the hands of the Australian people and deliver it into the hands of those who have the money to persuade unsuspecting bureaucrats that they are entitled to claim products of nature as their own inventions.”

Ludlam didn’t appear to believe the committee hearing this week had been very productive. “ACTA hearing has been like banging my head on a polite and respectful piece of concrete,” he said on Twitter yesterday “… that was a particularly bad example of denial dressed up as dialogue.”

opinion/analysis

At the moment I think many Australians are unsure as to why the ACTA treaty has attracted so much criticism in Europe. For those are uncertain about this, I encourage you to read the following article by David Meyer, which was published in the Guardian in February. Perhaps the following paragraphs will give you some indication as to why digital rights activists are so upset about this treaty:

“The Anti-Counterfeiting Trade Agreement is, despite its name, effectively an international treaty that forces signatories to criminalise “commercial-scale” copyright and trademark infringement … ACTA criminalises activities such as breaking the digital locks on rights-protected files, or even distributing tools to help people do so. Stripping the artist information from a music file becomes a crime, as does decrypting content that has been scrambled for copyright protection. ACTA also codifies the flawed idea, in calculating damages from so-called piracy, that every unlawful download represents a lost sale. ACTA ostensibly targets big players, but, when it comes to its application on the internet, its definition of “commercial-scale” infringement is loose enough to also cause trouble for individuals.”

In Australia, it seems relatively clear at this point that no Australian law needs to be changed for the nation to ratify ACTA, with our existing IP law already covering much of what the treaty discusses. And that IP law appears to have worked quite well for the nation over the past decade, in my opinion, in achieving the ‘balance’ that DFAT assistant secretary George Mina described. In addition, the Greens have so far not been successful in uncovering a so-called ‘smoking gun’ provision in ACTA that would have dramatic implications in Australia beyond our existing laws.

Some of Senator Ludlam’s questions to DFAT this week on ACTA appeared to go towards a potential ability for ACTA to constrain future IP policy development in Australia. But again, it seems as though the treaty isn’t likely to have a substantial impact on this area either.

It is likely for these reasons that there have so far been no widespread protests in Australia against ACTA, and why locally, apart from some degree of ill-feeling and suspicion from the Internet community, there hasn’t been a lot of controversy over the treaty.

My attitude towards ACTA in Australia right now is that we should be ‘alert but not alarmed’. The treaty, whilst it has some concerning provisions, doesn’t appear to be about to bring the Internet as we know it down around our ears, and in practice won’t change much of anything in terms of Australia’s regulatory environment around intellectual property. But we should still keep an eye on it. Who knows where this controversial initiative will go in future, and there’s always the potential for something much worse to be built on top of the foundation ACTA has laid.

Image credit: Lukas P, Creative Commons