ACTA concerns still but watch out for TPP

POSTED BY Rick Shera
07 October 2010

posted in l@w.geek.nz | TPPA | Intellectual Property | Copyright | ACTA

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( image courtesy of http://www.laquadrature.net/ACTA )

The latest ACTA text from the Japan round is out and it's good to see it released officially by the negotiating parties this time.

I've only focussed on the sections impacting the digital environment but on a quick flick through those sections I still have particular concerns around:

  • Article 2.5(1)(a) which seems to preserve a separate right for action to be taken against an innocent third party (such as an ISP) to prevent infringement, even where action has not been initiated against the alleged infringer.
  •  The greyed out text in Article 2.18(2) where signatories must provide enforcement measures with respect to at least copyright and trademarks "including the unlawful use of means of widespread distribution for infringing purposes” is more problematic.  That new wording has not appeared before and presumably is a last ditch effort to attack p2p.  However, on its face, it could apply to the internet itself (after all distribution is what the internet was designed for).  It seems to me that if distribution is to be restricted in some way then ISPs as conduits must be the target, again opening the door to third party liability and coerced graduated response.  It appears that at least one party has not agreed to it yet, so hopefully it will be deleted.
  • Article 2.18(5) combined with footnote 14 at the bottom of that page would make illegal the breaking of a TPM to avoid geographic zone controls, even where there is no copyright infringement per se.  This is directly contrary to the change made in NZ in 2006 to add section 226(b) to the Copyright Act.  The question I'll be asking of our officials is whether the "without prejudice” language at the start of that sentence in footnote 14, means that NZ does not have to enforce access control because section 226(b) would be "prejudiced” if it did.  Otherwise, despite previous assurances by officials to the contrary, NZ would have to change its copyright law in order to comply with ACTA.  The whole concept of geographic zone controls for digitally transmitted goods is archaic and should not be conflated with intellectual property protection anyway.

There are no doubt other issues with some of the other provisions but they are not my focus so I'll leave them for the moment.

The parties have trumpeted this as the "final” round and effectively "The Agreement", subject to tidying up minor issues.  I hope that MED and MFAT will now be making plans to consult widely on the text and drafting a Bill to get it into Select Committee, where it can at last be properly debated by the public.  After all we can't have the Australians beating us in the openness stakes ;-)


But, what has happened to the Trans Pacific Partnership negotiations?  The concern is, having had to water down ACTA under pressure from the EU, US and allied interests will use TPP to get what they originally wanted by a different route (and without having to worry about those pesky Europeans).  In this light it is revealing to see that Japan, an ardent supporter of maximalist IP protection alongside the US, is now considering joining TPP.

POSTED BY Rick Shera
07 October 2010

posted in l@w.geek.nzTPPAIntellectual PropertyCopyrightACTA

VIEWED 4564 TIMES

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