The next round of negotiations on the secret Anti-Counterfeiting Trade Agreement (ACTA) are due to begin this week in Guadalajara, Mexico. On the agenda this week are civil copyright measures, border measures, internet enforcement measures, and, very briefly, the issue of the lack of transparency in the negotiations.

While much of the text is hidden from public view, the EU’s analysis of the negotiations was leaked late last year. The leak confirms that the ACTA is designed to impose the tough sanctions developed by the US for copyright infringement on other signatories. The main goal of the ACTA seems to be to bypass the WIPO system and entrench US-style copyright regulations around the world. In this sense, a multi-lateral agreement may be more effective than the series of bi-lateral agreements that we have seen in recent years because it has the opportunity to bind several countries at once to implement US-equivalent law.

By doing away with the open international process that WIPO conducts, the ACTA poses a real threat to the reasoned modification of intellectual property laws worldwide. By doing so in secret, it ensures that democratic processes are marginalised; the public will only get to see the text once it has been finalised, at a point when it is likely to be too late, politically, for states to withdraw support.

The big problem for Australia is that we have already been strong-armed into US-style copyright laws. The Australia – United States Free Trade Agreement resulted in us adopting many of the measures that the EU and Canada have so far refused to adopt – including criminal sanctions for non-commercial copyright infringement; a full notice and takedown scheme; civil and criminal penalties for the circumvention of technological measures and the distribution of circumvention devices; and protection for ‘rights management information’. To add to this, our copyright law is already stricter than US law on third party liability, where we prohibit acts that are taken as ‘authorising’ the infringement of copyright, and, depending on the outcome of the iiNet case, we may well even already have a sort of three-strikes system to disconnect individuals accused of using their internet connection to infringe copyright (without judicial oversight).

Late last year, I had a telephone meeting with the Department of Foreign Affairs and Trade (DFAT), who are negotiating the agreement on behalf of Australia. DFAT’s position throughout these negotiations (as I reported in October 2008) has been that they are “not seeking to drive domestic changes” through the ACTA. While DFAT were not at liberty to disclose their analysis of the draft text, they were quite helpful and willing to provide what information they could. Unlike the US, DFAT is not willing to discriminate against stakeholders by providing text information under confidentiality agreements, which, while limiting overall access to the text, may be preferable in that it avoids the privileged position of special interest groups. I remain to be quite impressed with the degree to which DFAT is willing to be open, within the confines of the trade agreement process, about the details. I was told that for the most contentious internet and civil enforcement measures, there is sufficient flexibility in the text that means that Australia will not have to amend its laws. This is relatively unsurprising, as we already have the worst of US copyright law (without the concomitant balancing user right of fair use).

The two main threats to Australian law from ACTA are statutory damages and ISP liability. Statutory damages mean that the copyright owner does not have to prove any actual harm in order to recover significant punitive damages under copyright law. Recently in the US we have seen awards of $2,250 per song for filesharing (recently reduced from the $80,000 per song awarded in 2009) and another award of $22,500 per song. These damages are sought in order to provide a deterrent to copyright infringement, but they are clearly manifestly excessive and certainly do not appear to be achieving any significant deterrent effect. Australia has an aggravated damages clause, but still requires copyright owners to show harm, and awards as high as the US are highly unlikely. I asked DFAT whether the ACTA will require states to introduce statutory damages schemes and was told that there is sufficient flexibility in the current drafts to allow member states to determine their own damages regime and no obligation to introduce statutory damages. It was heartening to hear that DFAT will not support a position that limits this flexibility.

The other threat is the issue of ISP liability. The iiNet litigation is currently before the courts, and there is a chance that the Federal Court will find that iiNet had no obligation to pass on infringement notices or to terminate repeat infringers. It is conceivable that the ACTA will require higher standards of ISP liability, which could potentially see Australia introduce legislation to essentially overturn any verdict in the iiNet case. Apparently, again, the draft text does not exceed the standard required under AUSFTA (to which Australian law is compliant) and is sufficiently flexible to allow member states to develop their own case law on the interpretation of the safe harbours. If this is correct, then there will be no requirement to make changes to our safe harbours as a result of the ACTA.
All of this means that Australia’s participation in these negotiations is unlikely to mean significant changes to our law. For Australia (and unlike the EU, Canada, and many other states negotiating the ACTA), the problem is not necessarily this agreement, but the precedents it sets. Over the last half century, it has become absolutely apparent that the particular rules we choose for copyright have a huge effect on the ability of people to communicate and the way that societies can develop. The balances we enact affect the royalties that are payable to authors, the power of publishers and intermediaries, the freedom to innovate, the access of disadvantaged sectors of society to educational and entertainment material, the cost of education, and the freedom to engage (and critically engage) with our culture. Given the importance of the copyright balance to our society, there is no justifiable reason to conduct negotiations behind closed doors. The choices we make now will stay with us for the foreseeable future. If we value the democratic process, we should certainly not allow it to be subverted in this way; we should not tie the hands of our government to the will of the US copyright industry, and we should certainly not do it without democratic discourse.

The ACTA is not a trade agreement; it is an intellectual property agreement. It is apparently being dressed up as a trade agreement to avoid public scrutiny. We can only assume that this is because it does not, in fact, reflect the public good, but rather reflects the wish-lists of the copyright industry. It may turn out that because Australia has already submitted to US copyright policy that the ACTA will not drive changes to local laws; nevertheless, it is still a fundamentally bad way to make law. We should be concerned that the transparent international organisations like WIPO are being increasingly marginalised (presumably because they are becoming increasingly interested in developing nations and increasingly resistant to the US agenda); we should also be concerned that we will become increasingly bound by international agreements to the extent that we no longer have the flexibility to determine what rules are best for Australia and Australians.

It has been said a number of times before, but it bears repeating now. If the ACTA is designed to provide necessary remedies for copyright infringement in order to ensure that there are adequate incentives to maintain investment in the creation of expressive material, we should be able to have a public debate about whether it achieves that goal. If our governments wish to engender trust in this process, more transparency is required. There are two conclusions we can draw from the lack of transparency here: either the ACTA does not achieve a copyright balance that is in the public good, or our government simply does not care about democratic discourse. A democratic process after the negotiation has been completed is a mere shadow of the democratic process that we should aspire to.

Stay tuned for any updates from the negotiations this week, and any news of how you can help to send a message that citizens worldwide don’t want to be neglected in the process to make the laws that they must live by.