Kiwiblog

Computerworld reports:

A controversial plan to crack down on online piracy and counterfeiting will be opened up to public scrutiny for the first time next week, when the negotiating text of a secret international copyright treaty will be made public, the European Commission said on Friday.

Negotiations over the past two years have been conducted in secret. Leaks of the draft text have sparked a public outcry, mainly because of how the text deals with online copyright infringement.

Countries involved in talks on the Anti-counterfeiting Trade Agreement (ACTA) agreed unanimously to make the documents available to the public at a meeting in New Zealand this week, the Commission said in a statement.

This is excellent news and a real win for those who have been pushing for transparency. Having the draft text out there helps people make informed submissions.

However, they don’t plan to reveal their individual negotiating positions.

Which would be useful also. However the release of a draft text means the Government can be asked questions relating to that text.

I spent most of Saturday at the Public ACTA meeting in Wellington, discussing the text of the leaked draft ACTA treaty, and helping formulate what is now known as the Wellington Declaration.

The funniest part of the meeting was hearing from Michael Geist that in the Canadian Parliament that a Canadian Minister said there was no need to officially release the draft text of the ACTA treaty, as there was a leaked copy on Michael’s blogsite.

One shouldn’t have to rely on leaks, to know what is being negotiated.

Some key parts of the Wellington Declaration:

Consistent with the European Parliament’s Resolution of 10 March 2010 on the Transparency and State of Play of the ACTA Negotiations (P7_TA(2010)0058), ACTA should be limited to an Agreement regarding enforcement against counterfeiting (the large scale commercial production of illicit physical goods).

ACTA should not be a backdoor way to rewrite intellectual policy laws.

We recognise that the Internet has enabled creativity and innovation, the sharing of knowledge, citizen engagement and democracy, and is an engine of economic growth and opportunity. This is the result of certain attributes of the Internet: its open protocols and its generativity; the fact that anyone can connect and anyone can build new applications, and find new uses without discrimination. ACTA should preserve these attributes.

I like this clause. We take for granted too often the open nature of the Internet.

We note that the World Intellectual Property Organisation has public, inclusive and transparent processes for negotiating multilateral agreements on (and a committee dedicated to the enforcement of) copyright, trademark and patent rights, and thus we affirm that WIPO is a preferable forum for the negotiation of substantive provisions affecting these matters.

WIPO is far from perfect, but at least it negotiations are public, and often involve stakeholders.

We declare public scrutiny and accountability to be important aspects of life in a free society. We call for full transparency and public scrutiny of the ACTA process including release of the text after each round of negotiations. Governments have been unwilling to respond to specific concerns raised by the public. Public scrutiny will help to ensure the Agreement has no unintended consequences and has maximum positive benefit.

A number of Governments, including New Zealand, have been pushing for more transparency. However it takes only one country to veto the release of the text.

We declare that ACTA must recognise that intermediaries, such as ISPs, web site hosts, and search engines, are central to enabling people to derive the benefits of the Internet.  Their role must be protected and encouraged.

Intermediaries who do not initiate or direct the content on their systems or networks must have the benefit of safe harbours that are not predicated on enforcement obligations designed to address third-party infringement.

ACTA must not mandate secondary liability standards.

The Internet basically stops working if ISPs have secondary liability for what their users do. An ISPs obligation is to obey the law as directed by a competent authority.

We declare that access to the Internet is increasingly necessary for participation in society.

Disconnection, account suspension, or limitation of service, have disproportionately negative consequences for civil rights. ACTA cannot require or allow that it be an acceptable sanction for copyright or trademark infringement.

And this is what the US is pushing for.

We declare that ACTA must provide a high bar for criminal liability. ACTA must not attempt to reframe personal use and private acts to fit a definition of “commercial” infringement.

One proposal in ACTA is to make it a criminal offence to use a camcorder in a movie theatre.

If you support the Wellington Declaration, you can sign your name to it here. Almost 1,000 people have signed it so far, and it will be presented to the actual ACTA negotiators on Tuesday.

Well done to the organisers for a very useful and productive meeting on Saturday.

A reminder to those interested, that the Public ACTA conference is on all day Sturday in Wellington at the Town Hall. ACTA is the treaty being negotiated that may require countries to implement policies to terminate Internet access of copyright infringers.

As I have previously blogged, the position of the NZ Govt on ACTA has generally been a good one – but we only know this because the secret draft texts have been leaked in Europe.

This is an opportunity to learn more about ACTA and help critique the proposals around Internet access.

The programme is here. We have three top international experts speaking, plus a panel of local pundits. The three international speakers are:

• Professor Michael Geist, law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. Michael has a Doctorate in Law (J.S.D.) from Columbia Law School and is an internationally syndicated columnist on technology law issues.
• Kim Weatherall is a Senior Lecturer in the School of Law and an Adjunct Research Fellow with the Australian Centre for Intellectual Property in Agriculture. Kim teaches and researches in intellectual property law, with a particular interest in digital copyright, the relationship between international trade and intellectual property, and the systems for administration and enforcement of intellectual property rights.
• Jonathon Penney is the Internet NZ Senior Research Fellow in CyberLaw at Victoria University and has a MSt from Oxford and a LLM from Columbia. Hailing from Canada, he has previously worked as a lawyer with the Justice Department and as a policy advisor at the federal level

If you wish to attend, you can register here. Looks to be 100 or so people attending at this stage. There is no charge to attend thanks to InternetNZ,

If you are in Auckland and want to learn more about the Anti Counterfeiting Trade Agreement (ACTA), there is a public briefing run by InternetNZ this afternoon.

The venue is the Coromandel Room, Level 1, Rendezvous Hotel, corner Vincent St and Mayoral Drive in Auckland’s CBD.

It commences at 2.00pm and will be finished by 4.00pm.

Speakers include

• Officials from the Ministry of Foreign Affairs and Trade
• Jonathon Penney – the 2010 Cyberlaw Fellow at Victoria University of
  Wellington
• Colin Jackson – a Wellington consultant and blogger at IT.gen.nz
• Rick Shera – Lawyer, Lowndes Jordan
• Jordan Carter – Policy Director, InternetNZ

If you click on my ACTA tag you’ll find more info about ACTA and why it is important to be vigilant about it.

I’ve blogged in the past on ACTA, the Anti-Counterfeiting Trade Agreement. Readers will gear a lot more of this in the next month, because the next meeting of the ACTA negotiators is in Wellington in April.

There are two major issues around ACTA. The first is that the negotiations are secret, and this has even upset the EU Parliament:

Wary of the lack of openness surrounding the Anti-Counterfeiting Trade Agreement (ACTA), virtually representatives of the EU parliament have banded together, voting 663 to 13 in favour of passing a resolution that would require the EU Commission (who are the EU’s representative in ACTA negotiations), to share all information about ACTA talks, and to refuse to support any Internet disconnection penalty for online copyright infringement.

The resolution is very specific and blunt about the EU Parliament’s displeasure with the lack of transparency around EU ACTA negotiations, citing concerns over the “lack of a transparent process in the conduct of the ACTA negotiations”.

The second is the concern that ACTA may force countries that ratify it, to legislate for Internet disconnection for people accussed or found to have infringed copyright.

Now, all trade agreements are negotiated privately, but whether an agreement on copyright law should be seen as a trade agreement is a big issue – most IP agreements are not. Many countries would like to be more open about ACTA, but the rules of trade negotiations are that you need unanimous permission to agree to anything – including releasing information. So just one country, such as the US, can block the release of the draft text.

I’ve attended two meetings (in my role with InternetNZ) with officials from MFAT and MED, and have to say I am impressed with their willingness to engage, within the limits of what they can say. They have consistently said their position has been that ACTA should not require NZ to do anything beyond its current law (including the replacement S92A). However they can not tell us what has been proposed by other countries, and the concern is what pressure there may be to get an agreement in the final stages.

What the Government has done is asked for public submissions on “enforcement of intellectual property rights in the digital environment”. If you have concerns about ACTA, you should take a few minutes to make a submission and state what is and is not acceptable to you. Topics include:

• Liability of ISPs for third party infringement
• Safe Harbour provisions for ISPs and associated conditions
• Identifying Infringing Users
• TPMs (Technological Protection Measures)

Now despite the ACTA negotiations being secret, a draft text has been leaked. And, assuming it is accurate, it shows the New Zealand negotiators in a pretty favourable light – opposing some of the more undesirable aspects.

Nathan Torkington covers this in a blog post. His summary:

On the balance this bit isn’t too bad–New Zealand is a good voice for sanity in the negotiations.

I was pleased to see from the leaked draft, that the official position of the NZ negotiators, was very much in line with the informal indications they had given. It is ironic that we can only verify this, because someone leaked a draft.

Now as I said the next round of ACTA, and the round most likely to be discussing the Internet section, is in Wellington from 12 to 16 April. I am hoping the organisers will allow an opportunity for some sort of public forum or dialogue with negotiators, and this request has been made.

InternetNZ has organised a PublicACTA conference on Saturday 10 April, which will allow interested people to debate the issues, form positions, and report them to the main ACTA negotiations the following week.

And in a further announcement, the keynote speaker will be Professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa in Ontario. Michael is a real expert in this area, and a great advocate for balance in copyright laws.

I would recommend people attend, just for the chance to hear Michael. And if you wish to stay up to date with what is happening, I recommend this ACTA coalition site.

I’m getting nervous on the copyright front.

I was pleased the Government suspended the introduction of the “guilt upon accusation” S92A.

I was also pleased with their proposed policy replacement, that came out on 7 August. Didn’t agree with everything in it, but it was a lot better than the law passed by Judith Tizard. So far so good.

Submissions closed on that document on 7 August – that is four months ago. Most of the submissions were supportive.

So why I wonder has the Government not released its final proposed policy?

One reason I can think of is that they are getting furiously lobbied by United States lobby groups demanding changes to the proposed policy. We know the US MPAA had a Vice-President out here. I was pleased he only got to meet with officials, and not the Minister, but it would be naive to think such lobbying has no impact.

I hope I am wrong, and what emerges is at least as satisfactory as what was in the proposed policy. But why has it been four months with no news?

And then we have the ACTA (Anti-Counterfeiting Trade Agreement) which could remove our ability to determine our own laws in this area. Let me quote Peter Dunne and Clare Curran on this:

Peter Dunne said:

UnitedFuture leader Peter Dunne has called on the Government to release details of the recent international negotiations on the Anti-Counterfeiting Trade Agreement.

“There is a lot of conjecture about the contents of ACTA and what it will mean for the protection and enforcement of intellectual property and copyright law here in New Zealand,” said Mr Dunne.

“The veil of secrecy surrounding the contents of the ACTA agreement is causing a lot of concern not only here but also among the other nations involved.”

Indeed. And there are conflicting reports on what ACTA covers. Some say it is large scale commercial piracy. Other say it seeks to mandate S92A type laws for everyone.

“It is in the public interest for the Government here to be as transparent as possible over ACTA.”

“While we have been told by Mr Power that the negotiations bear no relevance to the issues around the review of S.92A of the Copyright Act, many people are nervous that this is what has held the current review up.”

“A simple disclosure of the terms and text of ACTA negotiations would allay any misplaced anxiety while also giving New Zealanders the opportunity to voice concerns they may have.”

“Mr Power was quick to listen to New Zealanders over S.92A and scrap Labour’s unjust law; I encourage him to do the same over ACTA,” said Mr Dunne.

It would be great to both have the ACTA text made public, and also to be told what is causing the delay in the review of S92A?

Clare Curran has also said:

In the interests of transparency and public interest, the New Zealand Government should reveal the text of recent secret discussions in South Korea on the Anti-Counterfeiting Trade Agreement (ACTA).

Clare has also blogged a transcript of questions about ACTA at a select committee.

The official says:

On the section 92A question that you ask, the answer is difficult to give. I just do not know how the United States is going to approach this issue, either in TPP or in ACTA as yet, in that they have not come to a definitive negotiating position even in ACTA. It is also very early days, as you know, internationally in terms of putting place these kinds of provisions, and a lot of people are looking at New Zealand in terms of how we do it and whether we can provide something of a model for others to follow. The strong hope that we would have is that the kinds of provisions that we are going to recommend shortly—and that, hopefully, the Minister will propose shortly to Parliament—will be enough in terms of any further concessions sought from us from the United States, etc. I think that in terms of the kinds of bases that the US wants hit, we will hit them but we will still have enough safeguards to protect the interests of users as well as owners.

That to me suggests that what is acceptable to the US, is a factor in the review of 92A.

Now I am a fan of an FTA with the USA. But I’d rather not give them everything they want before we even negotiate an FTA. Hell, we might be able to get rid of some lamb tariffs if we don’t bend over prematurely.

The official also said they hope for an update on S92A before Xmas. Not many days to go.

Also people interested in this issue might be interested in Kiwiright – a 12 minute documentary about the fight against S92A. It is embedded below.

© kiwiright from nu4mz on Vimeo.