Delimiter » negotiations

Opening Pandora’s box: secret treaty threatens human rights

External Contributor — Thu, 05 Apr 2012 02:55:48 +0000

This article is by Matthew Rimmer, ARC Future Fellow and Associate Professor in Intellectual Property at Australian National University. It first appeared on The Conversation and is replicated here with permission.

analysis The Anti-Counterfeiting Trade Agreement (ACTA) 2011 – Twitter hashtag #ACTA – is a controversial trade agreement designed to provide for stronger enforcement of intellectual property rights.

There’s been much concern that the treaty was secretly negotiated by a limited number of nation states – including the United States, Japan, the members of the European Union, Switzerland, Singapore, South Korea, Australia, New Zealand, Canada and Mexico. There has been little in the way of democratic input from developing countries, civil society groups or affected communities. Professor Peter Yu has observed that ACTA is a “bad country club agreement”.

The preamble to the treaty reads like pulp fiction – ACTA raises moral panics about piracy, counterfeiting, organised crime, and border security. The agreement contains provisions on civil remedies and criminal offences; copyright law and trade mark law; the regulation of the digital environment; and border measures. Professor Susan Sell has called ACTA a “TRIPS Double-Plus” Agreement, because its obligations are above and beyond the World Trade Organization’s TRIPS Agreement 1994, and TRIPS-Plus Agreements, such as the Australia-United States Free Trade Agreement 2004.

The agreement fails to balance the protection of intellectual property owners with the wider public interest in access to medicines, human development, and transfer of technology.

Parliamentary scrutiny
Parliaments around the world are concerned the treaty will impinge on national sovereignty, and trammel their role to engage in intellectual property policy-making. In the European Union, there has been uproar over ACTA. Kader Arif, the rapporteur for the European Parliament has resigned, complaining that the process has been a “masquerade”. After clashes over the treaty, European Commissioners contemplated asking the European Court of Justice to consider whether ACTA violates fundamental freedoms and rights. But the European Parliament wants to vote on the treaty first.

In the United States, Oregon Democratic Senator Ron Wyden has put forward amendments, calling for the US Congress to have greater oversight over international negotiations relating to intellectual property and trade. Californian Republican Congressman Darrell Issa has been concerned the treaty will have an adverse impact upon innovation, the digital economy, and internet freedom.

In Australia, the Joint Standing Committee on Treaties has held two public hearings on ACTA. The Department of Foreign Affairs and Trade (DFAT) has been a partisan supporter of the treaty, providing a cursory statement extolling its virtues, but offering no regulatory impact statement or accompanying legislation. Regrettably, there has been no independent analysis of the impact of the treaty in Australia upon economics, human rights or health care.

Access to medicines
The treaty threatens human rights – including the right to a fair trial, consumer protection, privacy, freedom of speech, and the right to health. Amnesty International has called ACTA a potential Pandora’s box of human rights violations.

With its broad definitions of trade mark counterfeiting and intellectual property enforcement, and its failure to fully exclude patent enforcement from its ambit, ACTA has the potential to undermine access to health care.

The treaty fails to provide positive obligations to promote access to essential medicines. It’s particularly lamentable that Australia and the United States of America have failed to implement the Doha Declaration on the TRIPS Agreement and Public Health 2001 and the WTO General Council Decision 2003. As a result, intellectual property owners could sue over the production and export of essential medicines to developing countries and least-developed countries.

ACTA has been criticised by a number of activists in the health sector – including Medicins Sans Frontieres, Oxfam, and Health Action International. Alphapharm – the generic drugs manufacturer – has expressed concern that the agreement could adversely impact the dissemination of generic medicines. What’s more, the treaty doesn’t provide safeguards against customs interdicting generic medicines on the pretence of intellectual property infringement – as when Dutch border officials intercepted a shipment of medicines en route from India to Brazil.

Tobacco control
Health activists are also concerned that the treaty is supported by Big Tobacco. British American Tobacco has argued: “We believe that ACTA will be a valuable tool to address the growing world market in counterfeit cigarettes.”

The treaty fails to expressly recognise the right of countries to take tobacco control measures under the World Health Organization Framework Convention on Tobacco Control. This is disturbing given that the Gillard government is locked in litigation with British American Tobacco and other cigarette manufacturers over its plain packaging initiative.

A protean agreement
What’s more, ACTA is a protean agreement – a moveable feast.

As James Love insightfully pointed out, the treaty establishes an “ACTA Committee”, which has broad powers to assess compliance with the treaty; to update the agreement; and prescribe best practices. No wonder, Medicins Sans Frontieres has called the treaty a “blank cheque open to abuse”. In addition, ACTA undermines and fragments existing international institutions, such as the United Nations, World Intellectual Property Organization, the World Trade Organization, and the World Health Organization.

The treaty is in clear conflict with the World Intellectual Property Organization Development Agenda 2007, which recognises that intellectual property should promote the United Nations Millennium Development Goals.

The Australian Parliament should reject ACTA because of its impact on human rights – particularly taking into account health care, access to medicines, and development. The government would do better to endorse the Washington Declaration on Intellectual Property and the Public Interest 2011, and implement its outstanding obligations in respect of access to knowledge, development, and the provision of essential medicines.

Coda
Matthew Rimmer, “A Submission to the Joint Standing Committee on Treaties on the Anti-Counterfeiting Trade Agreement 2011 (#ACTA)”, February 2012.

For a discussion of the impact of the treaty on the digital economy, see Matthew Rimmer, “‘Breakfast at Tiffany’s’: eBay Inc., Trademark Law, and Counterfeiting”, (2011) 21 (1) Journal of Law, Information, and Science 128-166.

This article was originally published at The Conversation. Read the original article.

Image credit: Lukas P, Creative Commons

Pirate Party demands Australia reject ACTA treaty

Renai LeMay — Mon, 30 Jan 2012 00:04:17 +0000

news The Pirate Party of Australia has made a submission to the Federal Government recommending it reject the controversial Anti-Counterfeiting Trade Agreement (ACTA) signed this month by the European Union, despite the fact that Australia actually signed the deal in September last year.

ACTA is an agreement between a number of major countries which will establish international standards for intellectual property rights enforcement — setting up an international legal framework for targeting counterfeit goods, medicines and online copyright infringement. It will see a new international IP governing body to handle the area.

In the wake of the demise of the Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA) in the US over the past month, following widespread protests, international attention has turned to ACTA, which many protestors see as implementing similar controls over the Internet as SOPA and PIPA. The European Union signalled its acceptance of ACTA this month, while Australia signed up to ACTA in September last year. A number of other countries, such as the US, New Zealand, Canada, Japan, Singapore and South Korea are also on board.

However, this week, the European Union’s key investor of ACTA (dubbed a rapporteur) resigned his post in protest over the signing, denouncing the lack of civil society participation in the development of ACTA and a refusal to take part in what he said was a “masquerade”.

In a media release today, the Pirate Party Australia noted it had filed a submission to the Federal Parliament’s Joint Standing Committee on Treaties’ Inquiry into ACTA (available online in PDF format). The wording of the submission is scathing for Australia’s participation in the agreement.

“Perhaps the most troubling aspect throughout the development of ACTA has been the opaque and clandestine nature of the entire process,” the organisation wrote. “Whilst the Department of Foreign Affairs and Trade [which is lead negotiator on ACTA] has stated that a certain level of confidentiality is required for trade negotiations, and while there is some ground to perhaps enable a certain degree of secrecy where complex issues may warrant negotiations in confidence, there is no conceivable rationale for the level of secrecy that the Department has maintained for what is essentially a copyright treaty.”

“The exclusionary approach by the Department – the sheer lack of public participation in an area of law that has such potentially large public interest issues – is especially troubling for the Australian democratic process, particularly where earlier leaked drafts contained especially draconian provisions. The secretive process directly contradicts the Declaration of Open Government that has placed primacy on principles of informing, engaging and participation.”

The Pirate Party pointed out that DFAT had not released submissions made to it by stakeholders, industry and consumer groups regarding the negotiation of the agreement and had also rejected applications for the submissions under Freedom of Information laws.

The Pirate Party highlighted the fact that developing countries such as India and Brazil actively opposed ACTA because of the threat to generic medicines which the countries relied on for their healthcare systems.

Some of the more specific concerns which the Pirate Party has in relation to the ACTA agreement include the fact that the agreement does not make any mention of the cultural rights of citizens, preferring to focus on the rights of intellectual property owners, that there were varying levels of agreement about what the value of damages should be in the case of those who have infringed copyright, that the privacy rights of those who have allegedly infringed copyright could be violated, and that the use of digital rights management clauses would make it “incredibly difficult” for legitimate purchasers of content to make backups of that content legally.

“The negotiations for ACTA were held in secret and excluded representatives of key stakeholders, particularly IT and consumer groups. This secrecy continues to this date, with submissions and other information regarding the Department of Foreign Affairs and Trade’s involvement in the negotiations remaining secret,” concluded the Pirate Party in its submission.

“Movie and music industry groups and representatives were granted exclusive access to draw up an agreement protecting their vested interests, with little to no regard to privacy or detriment to consumers and the public interest. This process of exclusion, opacity and protection of belligerent industries’ interests can only lead to one conclusion — the trade agreement is illegitimate and should be rejected on this reason alone. To accept this agreement is to condone the undemocratic process in which it was forged.”

“The Australian government is elected to serve the Australian people, not the interests of multi-national media and pharmaceutical executives.”

In a media release on 30 September, the Federal Government took a different view of ACTA, with Trade Minister Craig Emerson stating at the time that the agreement (which Australia had taken a “leading role” in the negotiation process to establish) “showed Australia’s determination to secure international cooperation to develop trade in the most innovative areas of the global economy”.
“ACTA builds on World Trade Organization standards to promote international trade in legitimate intellectual property, by elevating standards of enforcement,” Emerson said at the time. “This treaty will help stem the burgeoning global trade in counterfeit and pirate materials, worth many billions annually.”

Emerson said at the time that the treaty would support “market-oriented innovation” in Australia and other signatory countries by giving creators and exporters the confidence to promote their products overseas without fear of counterfeiting and piracy. “The treaty will also help stop the unwitting purchase by consumers of low-quality counterfeit and pirated material,” he said.
“The implementation of ACTA will not require legislative changes in Australia,” the Government’s media release at the time read. “Rather, trading partners will adapt their laws to the high standards of IP enforcement that already apply in Australia.”

Let’s talk about Telstra and the NBN … again

Renai LeMay — Wed, 28 Apr 2010 06:28:44 +0000

Telstra’s “threats” of competing with an alternative access strategy are this time all nonsense. They can’t get enough wireless out there, they have major building access issues with HFC and they should be cricified by sharehlders if they try to over-invest in their PSTN.

Read the full story by David Havyatt on his blog, Anything Goes

Telstra says NBN negotiations continue

Renai LeMay — Tue, 13 Apr 2010 23:34:00 +0000

The nation’s largest telco Telstra today denied what it said were rumours that its National Broadband Network negotiations with the Federal Government and NBN Co were about to reach a conclusion.

“This rumour is unfounded,” the telco said in a statement to the Australian Securities Exchange this morning. “As we have previously advised the market in our ASX announcement of 19 March 2009, negotiations are continuing in relation to NBN. These negotiations remain incomplete and confidential.”

“Telstra will continue to keep investors and the market informed,” the telco added.

It is believed Telstra meant to refer to March 2010, when it informed the market that a gulf had opened up between its financial expectations and those of NBN Co in ongoing talks between the pair (also including the Federal Government) about how Telstra’s assets and customers could be migrated to the new fibre network.

“Currently there is a significant gap between Telstra and NBN Co on what each party considers to be an acceptable financial outcome, and there are also a range of commercial matters that are yet to be agreed,” the telco said in a brief update to shareholders on the status of the talks on that date.

The trio have been negotiating for months on the exact terms of which the telco would work with NBN Co on migrating its retail customers across to the planned new fibre network and other matters such as access to Telstra’s infrastructure.

Both are seen as critical factors to the success of the NBN, particularly on an economic basic. In Telstra’s half-yearly results in February, Telstra chief executive David Thodey (pictured) highlighted the complex nature of the talks.

Image credit: Telstra

Telstra’s ticking clock

Renai LeMay — Fri, 19 Mar 2010 01:43:54 +0000

NBN Co is trying to negotiate a deal based on a conviction that Telstra’s copper network has already been massively devalued, while Telstra is trying to negotiate an outcome that salvages some of that value.

Read the full story by Stephen Batholomeusz at Business Spectator

‘Financial gap’ opens up in Telstra NBN talks

Renai LeMay — Thu, 18 Mar 2010 23:55:25 +0000

The nation’s largest telco Telstra today said a gulf had opened up between its financial expectations and those of the National Broadband Network Company in ongoing talks between the pair about how Telstra’s assets and customers could be migrated to the new fibre network.

Telstra, the NBN Co and the Federal Government have been negotiating for months on the exact terms of which the telco would work with NBN Co on migrating its retail customers across to the planned new fibre network and other matters such as access to Telstra’s infrastructure.

Today Telstra said the trio were approaching the negotiations on a “business to business basis”. “Telstra is discussing ways in which the gap can be bridged, recognising that the Government has highlighted the national interest benefits of the NBN and reform of the telecommunications industry,” the telco said.

“Further, as Telstra has stated in its submissions to Government, a range of legislative and regulatory approvals will be needed for an agreement to be implemented.”

Communications Minister Stephen Conroy is currently facing difficulties in getting his wide-ranging package of telecommunications reform legislation through the Senate, with the Opposition having pledged to vote against the bill and the Greens — crucial to getting it passed — threatening to pull their support if Conroy does not table the NBN implementation study which lays out the future of the network.

Among other things, the reform package contains provisions for breaking up Telstra into retail and wholesale arms.

Telstra has also previously said it was “very concerned” about the potential for NBN Co to offer retail services in competition with other players in the telecommunications market. In exposure drafts of legislation related to the NBN Co released recently, the Federal Government left the door open for the company to supply services directly to government agencies in a move that ran contrary to its stated aim for the company only to provide wholesale services.

Despite all of this, Telstra said it remained engaged with the Government and NBN Co to “achieve a timely outcome that was in the interests of the company and its investors”.

It warned that should an in-principle agreement be reached and agreed to by its board of directors, then it would need to seek shareholder approval for the full proposal — subject to “the required regulatory approvals”.

Image credit: Telstra