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  • From: Jessica Coates <j2.coates AT qut.edu.au>
  • To: Creative Commons Aotearoa New Zealand discussion <cc-nz AT lists.ibiblio.org>
  • Subject: [Cc-nz] FW: DFAT briefing session on the Anti-Counterfeiting Trade Agreement (ACTA) is to be held this Friday, 24 October at 10am
  • Date: Mon, 27 Oct 2008 11:19:52 +1000

Hey all

I thought people might be interested in this summary of a recent briefing by
Australia's Dept of Foreign Affairs and Trade on ACTA. A lot of detail on the
process and what's in the agreement (reading between the lines)

It's available online at the EFA site (http://efa.org.au) and
(http://nic.suzor.com/blog/2008/20081024-dfat_briefing_on_the_current_state_of_acta).

---
DFAT briefing on Anti-Counterfeiting Trade Agreement (ACTA)

Today I attended a briefing session on ACTA hosted by the Australian
Department of Foreign Affairs and Trade (DFAT). There was a good deal
of frustration on both sides of the fence - participants expressed
serious concerns about the lack of transparency in the negotiating
process, and DFAT consistently repeated that they were bound by
confidentiality agreements and could not divulge details of the draft
text of the agreement. Participants in the Tokyo round of negotiations
agreed that the full text of the agreement will only be made available
after negotiations have been concluded and the text finalised.
Understandably, there were a number of members of the audience who
were hesitant to accept any of DFAT's assurances as to the content of
the agreement without access to the negotiation documents.

The big points I would take away from the meeting are:

* DFAT expects negotiations to extend well into 2009;

* The Commonwealth Government is not seeking to drive domestic
changes through ACTA. Overall, there do not appear to be any great
changes to Australia's enforcement regime - it appears to be more
focused on affecting other states;

* The Government intends to limit the effect of any treaty to
trademark infringement and commercial scale copyright infringement;

* However, statutory damages for copyright infringement are on the table;

* Next meeting, in December, will consider internet distribution;

* Camcording is likely to be criminalised;

* There's still time to make relevant submissions to DFAT - indeed,
they release a substantial amount of information once they receive the
draft proposals before every negotiation round;

* DFAT does have a copy of the Cutler report.


When pressed about the secretive process, Dr Nicholas Rodgers from
DFAT noted that "the procedure is not an unusual one in trade
negotiations, although it is more generally applied to free trade
agreements and sub-multilateral groups." I asked Dr Rodgers what the
justifications could be for keeping the negotiations confidential in
an intellectual property agreement, as opposed to a trade agreement.
Dr Rodgers responded that Australia was not an original proponent of
the process, and did not support the secretive manner in which
negotiations are taking place. However, Dr Rodgers noted that in order
for Australia to 'be in the tent' - to be involved in the negotiations
- we had to abide by the ground rules set down for initial
participation. The rules allow for a limited consultative group to be
established, but DFAT do not like to make text available to some
interest groups and not the wider Australian population. This, at
least, we can be thankful for, given that rights owners typically
dominate these smaller focus groups in other countries.

It seems that DFAT are genuinely interested in hearing submissions
from the public, and have tried, within the bounds of the
confidentiality agreement, to seek input from the public about the
negotiations. Dr Rodgers repeatedly stressed that, without disclosing
the draft text, we could ascertain the boundaries of the agreement by
'reading between the lines' of the calls for comments posted on the
DFAT website in preparation of each round. Proposed draft text is
circulated to DFAT several weeks before the negotiation rounds, and
DFAT appear to make a thorough effort to extract the contentious
issues in their calls for submissions. It seems, then, that the list
of issues so far released by DFAT would appear to cover the main
points of the agreement.

Dr Rodgers told us that he expected negotiations to continue 'well
into 2009', although he did expect that each of the draft proposals
would have been tabled and discussed at least once by the end of 2008.
There are still proposals that DFAT has not seen. Once the text is
finalised, DFAT will hold comprehensive public discussions, giving
opportunity for public and parliamentary comment on the text of the
agreement before Australia signs. It was repeatedly stressed that
Australia was not bound to sign - we negotiate 'without prejudice' -
and that the decision whether to sign or not will not be made until
after the text has been released. It was noted from the floor,
however, that it is sometimes extremely difficult for parties who have
been heavily involved in the negotiation process to refrain from
signing after negotiations have been concluded, which implies that
public consultation after negotiation will be too late to be
effective.

This brings us to a consideration of the substance of the agreement.
Peter Treyde, from the Attorney-General's Department, insisted that
Australia was "not seeking to drive domestic changes" through the ACTA
process. Dr Rodgers insisted that it was not the intent of the
government to include copyright infringement which is not on a
commercial scale - explicitly saying that there will be no ipod
searches at the border. The treaty is geared to be 'TRIPS Plus', and
as Australia is already 'TRIPS Plus', DFAT and AGD are not considering
many substantial changes to our domestic law. The point of the treaty,
from Australia's perspective, would be to seek adoption by our
neighbours of the same type of enforcement regime that we have.
Representatives from Customs and the Australian Federal Police agreed
that Australia's enforcement and border protection measures are
effective, and that there was no real need to change; rather, they
would influence the discussions in order to endorse the measures we
already have. There was some mention of increased data sharing between
enforcement agencies.

Dr Rodgers outlined the three rounds of negotiation that have already
taken place. The first round considered extending customs application
for suspension scheme beyond that required by TRIPS, and DFAT
considered that TRIPS is 'broadly appropriate' in this regard. Ex
officio customs searches - without notification from the rights holder
- have been raised, and the point was made that Customs already has
such a right in certain circumstances. There was a particular focus on
targeting materials exported from Australia, or in-transit. TRIPS
requires focus on the prevention of imports, but Australian Customs
has some powers that go beyond TRIPS. The aim of the first round
appeared to be strengthening border measures to reduce international
trade in infringing material, and DFAT seemed to suggest that
Australian Customs currently already does a good job in this regard
('Customs currently intercepts hundreds of thousands of pirated items
each year').

The second round, in Washington, considered pre-established or
statutory damages for infringement. Proponents are seeking a statutory
formula or presumption for both the calculation of damages and for an
account of profits. There was significant discussion on this point, as
Australia does not currently prescribe statutory damages for copyright
infringement. Dr Rodgers noted that statutory damages "are indeed
controversial measures in the United States", and that despite the
fact that Australia is a small country, we may have allies in other
countries and have more influence than we could expect in negotiations
with the US. Mr Treyde noted that the practice in the US has led US
copyright owners to threaten 'housewives' with highly inflated
statutory damages in order to force settlements, and noted that the
"US has that in its legislation, but as far as that issue has been
discussed, there is certainly no agreement as to whether or not that
is the way to go. For Australia, it would cause problems at a
fundamental level as to the powers of the judiciary to assess and
award damages, and it would be difficult to carve out IP" from the
general scheme for damages.

When pressed on whether statutory damages would be in the final text
of the agreement, we were told, rather ominously, that "given that the
main countries that do the drafting are the US and Japan, it would be
informative to look at the legislation from those countries."

Dr Rodgers said that the issue of statutory damages is one of the key
issues that DFAT are interested in hearing submissions on. He noted
that DFAT considered that Australia's proceeds of crime provisions are
an important tool of deterrence "and quite an apt one". This is
hopefully an indication that Australia will oppose the inclusions of
statutory damages in the negotiation process.

This is probably the most significant piece of information to come out
of the meeting today. It appears likely that the US will seek to have
other countries adopt statutory damages regimes. We have seen these
used in the US to provide extremely inflated damage awards against
routine copyright infringement. The idea is obviously to discourage
infringement, but it hasn't been effective at doing this, and merely
results in manifestly unjust damage awards against those individuals
copyright owners decide to target. DFAT appear yet to make up their
mind whether they will oppose such measures in ACTA, and this would
seem to be an important point on which submissions should be lodged.

The third round, held earlier this month in Tokyo, discussed criminal
measures applied to copyright 'piracy' and trademark counterfeiting.
Dr Rodgers informed us that DFAT considers Australia's criminal
measures to be sufficient, and that there is not likely to be
substantial change to these. He did note, however, that there is
pressure to introduce criminal sanctions for recording of performances
at public events, and in particular, the recording of films -
'camcording'. Any such criminalisation would be limited to profit
making or commercial scale infringement.

Peter Coroneos, from the Internet Industry Association, asked whether
there would be an effort to redefine the meaning of the notoriously
loose 'commercial scale' provision in Australia's Copyright Act -
specifically, whether we would be criminalising file-sharing. Peter
Treyde responded that "there isn't a proposed draft text on these
provisions. But I think that the main drafters seem to be that the
agreement should be TRIPS plus. Australia's legislation is pretty much
TRIPS plus already (as a result of AUSFTA). There is not really any
suggestion that we should change this." The Attorney-General's
Department seed 'largely comfortable' with the negotiations so far on
this point, as 'Australia already has those standards'. As for whether
ACTA would be used to drive change in local laws, Mr Treyde noted that
the Australian Government's position is that it is "not keen to adopt
any measures which require substantial change" to our existing laws.

The representative from the Australian Federal Police noted that
confiscation of proceeds of crimes was an important disincentive for
commercial scale infringement, and that existing legislation is just
about adequate. Where proceedings under the Australian Copyright Act
are started by indictment, proceeds of crime can be confiscated, but
not where proceedings are commenced summarily. He also noted that the
Trade Mark Act was currently being reviewed to see whether offences
could be brought up to the standard required for proceeds of crimes
legislation to have effect.

The next negotiation round is scheduled for the first week of December
in Brussels, and will address internet distribution and IT issues,
enforcement best practice, international cooperation, institutional
issues and opening provisions (including, importantly, the definition
of 'counterfeiting'). DFAT noted that they will again seek comment on
relevant issues once they have access to the proposals being put
forward.

I asked whether in the next round, when internet distribution is
addressed, Australia is considering making any changes to intermediary
liability, or requirements for ISPs to implement graduated responses,
filtering, or mandatory disclosure of subscriber information? Dr
Rodgers responded that the text has not yet been released, and that we
won't know until it is. We were to be "guided by our general approach
to negotiations in considering our current regimes being broadly
suitable." Apparently, this is an indication that we won't be seeing
wholesale changes, but it remains a very vague commitment. Mr Treyde
added that Australian measures were currently approximately
appropriate, and that it would be 'interesting' to see what draft text
will be presented, but we'll have to wait and see.

Finally, on a personal note, a representative from the Australian
Copyright Council pointedly reminded me why I continue to volunteer
for Electronic Frontiers Australia. She raised the point that consumer
and users are extremely under-represented at public discussions such
as this one. We looked around the room, and when participants were
asked to raise their hands if they claimed to represent individual
users or consumers, to the best that I could see, I was suddenly alone
in the room. These international trade agreements have a great
potential to alter the copyright balance, affecting the way that
individuals engage with copyright expression in all their activities -
not just consuming, but learning, researching, remixing, sharing,
critiquing and reshaping. It is extremely important that we continue
to work to ensure that users and reusers of copyright expression have
a voice at the international level.

---

cheers,


nic



  • [Cc-nz] FW: DFAT briefing session on the Anti-Counterfeiting Trade Agreement (ACTA) is to be held this Friday, 24 October at 10am, Jessica Coates, 10/26/2008

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