Pressing pause on ACTA

The rejection of the Anti-Counterfeiting Trade Agreement (ACTA) by the European Parliament vindicates the principled stand taken by the Joint Standing Committee on Treaties in Canberra.

In a week when most news out of Canberra was painful, if not shameful, there was one brighter spot.

The parliament’s Joint Standing Committee on Treaties, an all-party committee, recommended unanimously that ratification the Anti-Counterfeiting Trade Agreement (ACTA) be postponed. A decision that seems all the more farsighted given that the European Parliament comprehensively rejected the agreement overnight, citing that the agreement left too much room for abuses against the privacy and civil liberties of consumers. Add to that the possible implications on innovation and the free flow of information and the rejection starts to make a lot of sense.

According to chairman of the Treaties Committee Kelvin Thompson there were many issues, none outstanding but, taken together, that gave formidable reasons to defer ratification.

Many crucial terms like ‘aiding and abetting’, ‘piracy’, ‘counterfeiting’ and ‘commercial quantity’ were short on clarity. Indeed some were so open-ended they might apply to citizens going about his or her otherwise lawful business.

There was the Australian Law Reform Commission’s Inquiry into Copyright and the Digital Economy, due by 30 November 2013.  Wisdom suggested that its freedom to make recommendation in Australian interests not be compromised by the ACTA.

And there was the National Interest Analysis, prepared by the Department of Foreign Affairs and Trade to argue for and against the ratification of the treaty.  The committee found the analysis was long on assertion and very short on evidence-based advice. 

Independent and transparent assessment

The glaring deficiencies of the National Interest Analysis led the committee to recommend an ‘independent and transparent assessment of the economic and social benefits of the treaty’, prior to any reconsideration of ratification.

In calling for that evaluation and choosing those words, ‘independent and transparent’, the committee delivered a rebuke to the Office of Trade Negotiations in DFAT, the same authority responsible for negotiations of the Trans-Pacific Partnership Agreement.

Reading the committee’s ‘Report no 126: Treaty tabled on 21 November 2011’, was a robust experience, somewhat restorative of confidence in our parliamentary system.  It confirmed the crucial need for an ‘independent and transparent assessment of the economic and social benefits of the treaty’.

Like the TPPA, the ACTA was negotiated, largely in secret, among 11 countries; the United States, Australia, New Zealand, Canada, Japan, South Korea, Mexico, Morocco, Singapore and Switzerland, and the European Union representing its 27 member states.

The ACTA is said to have arisen from the Trade Related Aspects of Intellectual Property Rights (TRIPS), the agreement that signalled the inclusion of trade-in-services among the agreements reached in the Uruguay round of the GATT, the institution that preceded the formation of the World Trade Organisation (WTO).

Perhaps by coincidence, the initiative for the ACTA arouse in 2006, just as negotiations for a new intellectual property regime by the World Intellectual Property Organisation (WIPO) stalled.  As reported in Screen Hub last week, these negotiations were successfully completed in Beijing last week.  Like all multi-nationals negotiations that accommodate the legitimate interests of countries, great and small, consideration takes time.

However, the ACTA negotiations were set up outside the TRIPS mechanism.  According to the National Interest Analysis considered by the committee, ‘existing IP enforcement standards in the World Trade Organisation (WTO) have been insufficient to diminish the growth in international trade in counterfeit and pirated materials’. 

That’s DFAT-speak for ‘technology and crooks moves faster than the WTO can, and the backers of the ACTA cannot and will not wait’.

The ACTA was finalised last year in Tokyo and signed on behalf of the Australian government by Minister for Trade, Craig Emerson.  In the normal course of treaties, the committee’s endorsement without qualification is common, but not in this case.

DFAT had earlier stated the terms of the treaty were entirely consistent with existing Australian legislation.  DFAT has said that exactly the same position apply to negotiations for the TPPA. 

However, the committee found the agreement ‘significantly more stringent and rights-holder-friendly’ than agreements to which Australia is a signatory.  In addition, individuals or organisations whose actions may be criminalised are denied any safeguards or lawful defences, like, for example, ‘fair use’.

European rejection

Rights are a key issue for the screen sector: witness the inclusion of right for screen actors in the new WIPO agreement. But equally, access to rights on fair and equitable terms are vital to creative development and innovation in all fields, the screen industries in particular.  It is a matter of balance between the competing interests of rights-holders and content-users.  And of course, balance is, like beauty, in the eye of the beholder, or in the ACTA, the rights-holder.

Another reason for the committee’s caution was the position taken by some members of the European Union and our Office of Trade Negotiations’ dismissal of them.

Office of Trade Negotiations’ advice, cited in the report, reveals a sophistry in word choice equal in elegance to that of the US trade negotiator, Ron Kirk, as he avoided giving a straight answer to the US Senate about the secrecy surrounding the TPPA.  Kirk argued that US Senators and the Motion Picture Association of America have equal right to view the negotiation document, but senators have to read in a secure room and can’t take copies, while the MPAA (or the RIAA) can log-on with a laptop on a park bench.

Back to the drawing board?

When questioned on ‘the apparent difficulties faced by the ACTA in other countries’, largely European, DFAT officials characterised ‘the difficulties as part of a “very vigorous debate” but that “no country has indicated that it will not ratify [the] ACTA”.’

Well, strictly speaking that’s true. No signatory country has ‘indicated that it will not ratify [the] ACTA’. But the Committee on International Trade of the European Parliament has recommended rejection of the ACTA. The European Parliament has now duly obliged.

Germany and Bulgaria had said that they weren’t going to sign until the European Parliament had its vote. So there is little chance of them getting involved now. Poland, the Czech Republic and the Slovak Republic have suspended ratification, Switzerland has postponed signing pending the clarification of ‘personal issues’ in the treaty and the Dutch Lower House has recommended rejection of the treaty altogether.

Even in the US, there are concerns about the constitutional legitimacy the negotiations. 

The President, or an office of the executive like the US Trade Representative, can negotiate on matters that fall within presidential powers.  But IP law is a Congressional power, so the Constitution requires that Congress be involved.  The situation is not unlike the birth of the GATT, when President Truman couldn’t get legislation for an International Trade Organisation through Congress, and got the GATT model instead.

So, strictly speaking, no signatory country has ‘indicated that it will not ratify [the] ACTA’, but a whole lot are having second thought at the most senior levels and doubtless, others at less senior levels. The events overnight will only add to the doubts.

Lessons for TPPA

Perhaps our Office of Trade Negotiations needs to level with our parliamentary representative and stop putting departmental hubris ahead of the nation’s interests.

In the face of this and many other examples of sophistry and obfuscation by DFAT, is it any wonder that the committee took a long hard look at ACTA and found it wanting?

And is it drawing too long a bow to conclude the Joint Standing Committee on Treaties, like the IT industry representative at the TPPA briefing in Canberra a few months ago, have little faith in our government’s negotiators?

Yes, the illegal trade is costly and may fund international crime and terrorism as some have claimed, but the legal trade is bigger and more important to economic and cultural growth of most countries on earth.  Counterfeits might represent 0.01 per cent of all imports to Australia for 2009-10, so some perspective is needed.

There are lessons here for the TPPA too. Agreements that rush to conclusion; capitulation to our more powerful partners’ agendas; failure to put Australia’s interests ahead of neat resolution of issues and, above all, reaching agreement far from the light of public’s gaze or approval, indeed far from the madding crowd of democratic process.

By the way, the TPPA negotiations are on in San Diego this week. US Rep. Darrell Issa whose Californian district includes part of San Diego has requested observer status at the negotiations. Your correspondent is not holding his breath.

Dr Vincent O'Donnell is the media policy editor at Screen Hub and an executive producer at Arts Alive. He is also an independent media analyst associated with the School of Media and Communication at RMIT University. This article is an edited version of an article first published in Screen Hub.