ACTA process should not be used for TPP

POSTED BY Rick Shera
29 September 2011

posted in | TPPA | ACTA



New Zealand has just announced that it is to sign the Anti Counterfeiting Trade Agreement (ACTA).

I'm not so fussed about that now because it will make only minor tweaks to our IP laws. That was not how ACTA started out though. Thankfully, informed international scrutiny of leaked texts made Governments, including our own, realise that many of the provisions were a bridge too far. The Wellington Declaration (pdf) in April 2010 was a significant part of that.

What we are reminded of by the ACTA announcement though is how the treaty process works.

  1. Cabinet decides that we should enter into negotiations and sets some parameters within which our negotiators should operate.
  2. Those parameters are not revealed publicly.
  3. Negotiations commence.
  4. The positions the New Zealand negotiators take are not revealed publicly.
  5. The agreement is gradually finalised over a period of time with draft proposed text, counter-proposals and amendments being exchanged by the negotiating parties.
  6. None of the work product of those exchanges is revealed publicly.
  7. Cabinet approves the final draft of the agreement based on reports from the negotiators.
  8. The reports from the negotiators are not revealed publicly.
  9. The agreement is signed.
  10. The agreement is revealed publicly. (With ACTA, leaks effectively forced the negotiating parties to release the official text somewhat earlier but we will not know until we see the actual agreement whether there have been any subsequent changes).
  11. A Bill is drafted to implement the agreement by making any necessary changes to existing laws (in the ACTA case to our Copyright Act and Trademarks Act).
  12. The Bill goes to select committee for public input.
  13. The Act is passed.

Step 13 is in theory not a foregone conclusion but I think we can see from the above that by the time we get to step 12, it would be very difficult to do anything more than nibble at the edges. It is pretty much an all or nothing exercise at that stage - either ratify the agreement by making these changes to our law or don't ratify and we scrap the agreement altogether. To get to that stage, the process has been through Cabinet a couple of times at least, so I think scrapping it is highly unlikely.

As I said, for ACTA, not such a big deal, but only because we effectively were able to consult on the proposals during step 5. I'm sure our officials would admit, if allowed, much of that public input was useful to them. After all, IP law changes impact at various levels so it is always useful to have those impacts explained by those who will feel them (for better or worse).

But, how does this translate to the Trans Pacific Partnership Agreement (TPP), the so called "son of ACTA"?

Not very well I'm afraid. 

First off we know that the US in particular is starting TPP where it wanted to finish with ACTA but couldn't because of all that international scrutiny. That means, if accepted, the US position would take an axe to NZ IP law and result in more dramatic changes than any we have seen in the last 20 years.

Secondly, the EU is not involved in TPP. That means we don't have a large co-negotiating party with whom we can potentially share positions opposed to the (primarily) US demands for TRIPs plus IP laws (and remembering that Australia has already agreed to some of the proposals in TPP in its own free trade agreement so its interests are not necessarily aligned with ours). 

But, more importantly in terms of the above process, many of the most informative leaks which enabled public scrutiny of ACTA as it progressed came out of the EU. Without it, what we are seeing with TPP is the US strategy of private negotiation holding sway and very little information being made available.

I'm not one who thinks that each step of the negotiation should be conducted in public. That only discourages free and frank negotiation or worse still sends the negotiation into informal and far less transparent channels (if that were possible).  However, equally, I think what we can see from the above process is that it makes a mockery of consultation, the select committee process and of Parliament.

There is a middle ground. When a consensus between the negotiating parties is building, but well before any agreement is reached in form or principle, the text and negotiating positions should be revealed and public input sought by the Minister and our negotiators. Given the urgency with which this negotiation now seems to be being conducted, we must be at that stage now.

The catch cry seems to be that we want a high quality, 21st Century, future proof, agreement. If we are going to have one at all, public disclosure now is the only way to achieve it.

POSTED BY Rick Shera
29 September 2011

posted in l@w.geek.nzTPPAACTA



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