The Australian Parliament’s Joint Standing Committee on Treaties issued a report today recommending that “the Anti-Counterfeiting Trade Agreement not be ratified by Australia” unless and until the government can provide an adequate evidentiary record proving that the agreement will be in Australia’s best interests.
The decision follows close on the heels of a similar rejection by the EU parliament’s INTA committee, also the primary trade law committee in that body. As the report itself notes, the move by the Australian committee to reject ACTA makes it increasingly unlikely that ACTA will go into force in any member country.
Links to the report and background submissions can be found at:
Senator Scott Ludlam, a member of the JSCOT committee from the Australian Greens party, explained:
“The Joint Standing Committee on Treaties has thoroughly examined the text, the arguments and the positions taken by other governments and sees the writing on the wall; there appears a very real possibility that ACTA will not be ratified by sufficient countries in order to come into existence,” said Senator Ludlam.
“The Greens would welcome ACTA being ruled out completely because the content of this treaty is fatally flawed and the process that brought it about was shamefully and unnecessarily secretive. While our government did hold consultations they were farcical because those being consulted did not have the secret text and therefore couldn’t provide advice and feedback.
“Australia’s parliamentary committee is not alone in its detailed criticism of this Agreement. No less than five European Parliament Committees have recommended it be rejected. Several EU countries have suspended consideration until further notice and the Dutch Lower house has recommended its rejection outright. Hundreds of thousands of people have come out in demonstrations against ACTA throughout Europe and the United States.
“ACTA may well go down if governments listen to their people and parliamentary committees, however, many of the interests that drove ACTA are currently driving the Trans-Pacific Partnership Agreement – the obligations of this Agreement being negotiated in secret will affect very similar areas such as affordable medicines, Australian content and digital copyright issues.”
According to one Parliamentary staffer in correspondence to me:
“While the Committee does not rule out Australia acceding to ACTA, it has produced a report that is very critical of the treaty, citing many experts that gave eloquent and substantive evidence as to why ACTA is fatally flawed. The Committee has placed a number of qualifiers and preconditions in its recommendations that send a strongly critical signal.”
On the occasion of the release of the report, Professor Sean Flynn, Associate Director of the American University Washington College of Law Program on Information Justice and Intellectual Property explained:
“The Australian committee report reveals the fatal flaw in ACTA in stark terms: there is no evidentiary basis for this treaty. Now that the treaty is being exposed to public processes like this one, the lack of that evidentiary record is becoming painfully clear.”
“The Committee report critiques in strong terms the many ambiguities in the treaty, the lack of an evidentiary basis for its terms and the closed and undemocratic process in which it was negotiated. The big question, now that the Australian government has been sent back to the drawing board on ACTA, is how it affects the reported position of the Australian government in the Trans-Pacific Partnership Agreement that ACTA’s terms are an appropriate compromise in response to the even more expansionist U.S. position for an IP chapter in that agreement.”
“Many of the criticisms of the ACTA process and substance apply equally well to the negotiation of the IP chapter in the TPP. Some of the quotes of the report to this effect include:
‘In its 2010 report, the Productivity Commission cautioned against adopting IP provisions that are of main interest to other parties.’
‘Australia’s ability to make legislative changes based on recommendations by bodies like the Australian Law Reform Commission, with due consideration of the benefits and costs inherent in Australia’s existing IP regime, may be diminished by a negotiating stance that assumes existing IP standards in Australia are suitable.’
‘The fact that ACTA might not require new legislation does not mean it will not lead to changes in operational policies that will impact on such parties.’
‘Loose definitions of ‘intellectual property’, ‘commercial scale’, ‘counterfeiting’ and ’piracy’ have the potential to cause confusion and possibly result in legal proceedings given that ACTA is a legally binding document.’
‘it is virtually impossible to determine the quantity in the authorised market which might have been sold in the absence of a secondary market for the counterfeit goods. The profit margin in secondary markets is considerably lower than the profit margin in authorised markets. The appropriate presumption in determining the degree to which copyright infringement is criminalised is the value of the copyright infringing goods in the secondary market.’
‘A related but slightly different concern is the effect on the public of over-criminalisation of an act. Ms Kimberlee Weatherall speculates that criminalising minor acts tends to facilitate overcharging of individuals and lessens peoples’ respect for the law, as well as imposing a chilling effect on business.’
‘A further criticism of ACTA’s criminal enforcement provisions is that they do not comply with the standards set out in the Washington Declaration on Intellectual Property and the Public Interest (the Washington Declaration).
The points of difference between ACTA and the Washington Declaration allegedly include:
That ACTA does not ensure that legal penalties, processes, and remedies are reasonable and proportional to the acts of infringement they target, and do not include restrictions on access to essential goods and services, including access to the Internet or to needed medicines and learning materials;
ACTA fails to promote proportional approaches to enforcement that avoid excessively punitive approaches to enforcement, such as disproportionate statutory damages; undue expansion of criminal and third party liability; and dramatic increases in authority to enjoin, seize and destroy goods without adequate procedural safeguards;
ACTA does not ensure that countries retain the rights to implement flexibilities to enforcement measures and to make independent decisions about the prioritization of law enforcement resources to promote public interests;
ACTA fails to ensure that agreements and protocols between individuals, intermediaries, rights holders, technology providers, and governments relating to enforcement on the Internet are transparent, fair and clear; and
ACTA fails to ensure that public authorities retain and exercise rigorous oversight of critical enforcement functions, including policing, criminal enforcement and ultimate legal judgments.16
‘TRIPS contains statements of fundamental balance and protections for users that are absent from ACTA.’
‘given the level of controversy that has surrounded this treaty, it may be appropriate for DFAT to introduce an increased level of consultation for those treaties that attract a higher level of public interest. . . . There is no valid rationale for the level of secrecy that DFAT has maintained for what is essentially a copyright treaty. . . . ACTA is not in fact a trade agreement, it is an IP agreement, and confidentiality is not common or appropriate in IP negotiations which impact directly and in minute detail on domestic law and domestic innovation policy.’
‘Public consultations offered by DFAT between November 2007 and April 2010 were conducted without any public access to the draft text and negotiating documents. This lack of transparency negated meaningful public consultation.’
‘In the United States (US) ratification of ACTA appears to have stalled amidst a debate about the constitutional validity of the way in which the Office of the United States Trade Representative negotiated ACTA. At issue is whether the Executive Branch (the President) alone has authority alone to ratify ACTA on behalf of the US or whether the US Senate or alternatively both chambers of Congress need to give consent. See: Open letter, Law Professors to the United States Senate Committee on Finance, dated 16 May 2012, http://infojustice.org/senatefinance-may2012, accessed 6 June 2012.’