International IP Agreement May Change Net Forever

Whilst the shelving of SOPA and PIPA legislations in the United States has defrayed anxiety for the time being, there are signs that a significant international treaty may, in fact, extend the same obligations around the world.

First presented for negotiation in Geneva in 2008, the Anti-Counterfeiting Trade Agreement, known as ACTA, has already been signed by 31 countries, and with another six signatories, the agreement will come into effect.

Whilst negotiations have continued for several years, the policy went largely unnoticed by the public until recent anger over SOPA/PIPA. The online activist organization Anonymous recently warned that the passing of ACTA might see the destruction of the Internet in its current form.

Countless online petitions are urging Internet users to sign and stop the European Parliament from joining ACTA, and effectively passing the agreement. “ACTA will fundamentally destroy the openness of the Internet, lacks democratic credibility, and poses a serious threat to free speech that wrongly requires ISPs to survey and police their users,” says one. “We urge you to withhold consent on this agreement and to stand up for democracy and the fundamental rights of everyone across the world.”

The fact that this agreement has been negotiated behind closed doors is a further cause for anxiety for the online community. 72 lawyers in the United States have already petitioned Barrack Obama to bring his decision to sign the policy to the Senate. The lawyers have criticised Obama’s direct methods as policy-laundering, due to the secrecy of the legislative process so far.

The agreement has an express aim to prevent copyright infringements, but the fact that the policy fails to define intellectual property without referring to other documents is causing some debate.

Strengthening Intellectual Property laws in both public and private areas of the internet will have several significant effects. The justification of this policy, in line with the justification of all other significant anti-trust agreements, is to ensure that producers of material will be guaranteed economic return for use of their work.

Another possible effect will be the punishment of any unauthorized sharing of copyrighted information on forums such as YouTube, Twitter, Facebook, blogging sites and even MSN. According to Anonymous, even private emails could be put through surveillance with the reasoning that if you’ve got nothing to hide, you’ve also got nothing to be worried about.

A spokesperson for the Australian Federation against Copyright Theft (AFACT) told the Sydney Morning Herald “AFACT has always maintained that ISPs have a responsibility to prevent online copyright theft. With the opportunity to carry content comes a responsibility to protect it. ISPs have a duty to ensure that their profits do not come at the expense of the rights of the creative communities.”

ACTA will not only affect Internet use, but will allow for the enforcement of international standard of anti-trust for medicine and agriculture. This could mean a more stringent application of patents across seeds and medicines. The agreement will also provide the framework to create laws reducing the availability of generic medication, meaning full-priced, patented versions manufactured by patent-holding corporations will be unavoidable, in many cases.

           “The treaty does not create new IP rights, but is all about enforcement,” says Dr Peter Chen, politics lecturer of Sydney University. “Like it or not, big corporates make medicines at present”

“The specific signatories are required to implement “effective” enforcement of existing laws.  This could be subject to considerable debate about what would be effective.  It does require that information be released by ISPs to rights holders to allow them to make formal complaints [or] take action within the scope of domestic law and the treaty,” he said.

Kimberlee Weatherall, Intellectual Property lawyer and Associate Professor at the University of Sydney, says that ACTA is not concerned with the economic return for individual artists’ intellectual property, but is propelled by the interests of large companies and the government.

“ACTA may be one of many things that make the government turn around and say that we need to do something about our copyright laws; which might, in turn, mean that ISPs are going to have to terminate users due to their actions on the internet,” she said.

Professor Weatherall, in a submission to the Joint Standing Committee on Treaties (JSCOT), said that ACTA poses a threat to access to essential medicines. She went on to question the secrecy surrounding the US legislative process at present.

           However, the Department of Foreign Affairs and Trade released a statement to the effect that legitimate generic drugs and civil liberties would not be affected. “ACTA will not ban or limit the availability of generic drugs in Australia, nor impact on trade in legitimate generic drugs,” the statement reads.

Matthew Rimmel, Associate Director of the Australian Centre for Intellectual Property in Agriculture, disagrees. “The Anti-Counterfeiting Trade Agreement runs rough-shod over domestic law reform processes; trammels the powers of the Australian Parliament; and undermines multilateral international institutions such as the UN,” he told Tharunka.

He also says ACTA lacks suitable safeguards for the public interest, “particularly relating to protection for human rights, privacy, fair use, competition, and access to medicines.”

Professor Weatherall says that the agreement is part of a wider trend towards increased regulation which has been under way for a long time.  “The net will be more regulated in the future,” she said. When it comes to the impact on users, she said the Government would say none at all, because there was no implication of a definite change in Australian law. “A great deal will depend on the High Court’s decision regarding the iiNet case as to how the law for ISP responsibility will affect users.”

The iiNet case, now in its second month, involves the investigation of whether the ISP sanctioned users to illegally download material. Whilst the court found this was not the case, that decision has now been appealed to the High Court.

 Dr Rimmer says, ACTA is notable for its lack of transparency, accountability, and democratic participation. “[It] is a piece of corporate welfare designed to benefit major intellectual property industries – such as the motion picture studios of Hollywood; the moribund music industry; and luxury fashion houses.”

Lily Ray

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