by Nic Suzor

Today I attended a briefing session on ACTA (Anti-Counterfeiting Trade Agreement ) hosted by the Australian Department of Foreign Affairs and Trade (DFAT). I felt it was a good meeting, and I really got the sense that DFAT were interested in public participation. 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.

Overall, whilst I think that the process is far too secretive, DFAT appear to have gone a long way to make available what they can, and they seem genuinely interested in hearing from interested parties in Australia. Unfortunately, input will be limited (blind) until negotiations are complete and the text finalised, but DFAT assures us that they are considering the issues thoroughly and there will be genuine opportunity to debate whether or not to sign at the end of the process.

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

  • Negotiations will go '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 has 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.
There was also a lot of discussion about the scope of the ACTA as it applies to patents. DFAT attempted to reassure audience members that ACTA would be limited to trademark and copyright infringement, and that the border control and criminal measures discussed so far contained no reference to patent infringement. With regards to pharmaceuticals, DFAT and the AGD noted that the purpose of the border control measures were to catch 'counterfeit' pharmaceuticals - used, in this sense, to mean infringing trademarks - and not generics or patent infringing drugs. There was also significant concern from the agricultural lobby that ACTA would have spillover effects on importers of patented seed crops, and DFAT stressed that they had not seen and did not expect to see any patent issues in the negotiation. At the next meeting the preliminary provisions will be discussed, and it is expected that they will limit 'counterfeiting' to trademark and copyright infringement.

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.

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