Ti Point Tork

NZ Doing Good in ACTA Negotiation

The Anti-Counterfeiting Trade Agreement (ACTA) is an agreement between countries around IP rights and enforcement. The negotiations have been happening in secret, with every country saying “well, we’d love to reveal what we’re talking about but those other countries just won’t let us”. Fortunately there have been leaks, and the latest is a fascinating glimpse at how these things are put together and where the parties stand.

It seems bizarre at first, but the draft is laid out like a spreadsheet: one article per row and with three columns, one each for the US/Japan version, the EU version, and comments. Inside each sentence square brackets mark the attributed proposed alternatives for language. From this we can tell some very interesting things about the New Zealand position:

• NZ negotiators are keen on the wording “copyright and related rights and trademarks” rather than the US’s catch-all “intellectual property”. Richard Stallman has a well-written article on why “intellectual property” is a dangerous illusion. (Namely, it covers some very different pieces of law with different intents, terms, scope, and applicability)
• NZ negotiators are keen to keep the Copyright Tribunal option open. After Section 92a collapsed last year, the government consulted and has proposed a nuanced and good proposal that balances ease of complaint against risk of false accusation, giving the Copyright Tribunal the ability to hear complaints and award fines of up to $15,000. A 6-month suspension of Internet access and larger fines remain the domain of the courts. The US proposed language is all about “judicial authorities”, so New Zealand has proposed “competent authorities”. This is good–it shows that the government is serious about the Copyright Tribunal part of the new Copyright Bill and is not simply mooting it knowing that it will be overruled by ACTA.
• NZ negotiators are aware of the US desire to turn litigation into a revenue stream. They’ve opposed the US language “in the case of patent infringement, damages adequate to compensate for the infringement shall not be less than a reasonable royalty”, although interestingly NZ only supports this being stricken from the US proposal not from the EU proposal. The EU negotiators’ comments are fascinating: “The EU sticks on the concept that damage compensates all the prejudice but only the prejudice. Neither ‘punitive damages’ nor ‘future prejudice’ is acceptable”.
• NZ negotiators are keen to prevent the situation where someone joins a filesharing network, grabs an album, and is hit with a $100,000 penalty. Their wording supports flexibility when copyright damages are set: the authorities may consider lost profits (as opposed to the US wording shall) and NZ suggested the authorities consider retail price as well. The US wants each country to set up a system of pre-established damages and guidelines for calculating the penalties (oh, say, number of copies times profit we say we would havemade), and give the rightsholder the choice of using that formula instead of letting a judge award penalties. NZ wants this to be optional, not mandatory.
• Pirated or counterfeit items will be removed from sale or distribution, and NZ would also like them to be surrendered to the rightsholder (so Mattel get the knock-off Barbie dolls). The machinery used to manufacture the pirated or counterfeit goods is also forfeited, which NZ raises no objection to. It’s unclear to me whether this applies to computers used in copyright infringements.
• NZ supports deleting the article which says that when you’re found guilty of infringement, your identity and the identity of others involved in the infringement and distribution are turned over to the rightsholder.
• NZ is questioning the scope of the term “online service provider”. As we’ve seen with S92A, the term “provider” might cover cafes, hospitals, employers, apartment building body corporates, families, even sites like Google and TradeMe. Clarity is essential.
• ISP and website liability is a hot topic. Some countries already hold service providers liable for what happens on that service (e.g., Italy’s prosecution of Google executives) while others give safe harbour to such providers. Section 4 says “what we said for the physical world also applies for the online, but countries can place limits on the liability of service providers under certain conditions”. Switzerland wants this optional, NZ wants to know why search engines deserve safe harbour. I hope they got their answer–Google’s programs index billions of web pages and there aren’t enough humans on the Internet to read and pre-qualify pages before they go online.
• There’s an interesting clause that would prevent service provider safe harbours from being made conditional on proactive monitoring. That is to say, a country wouldn’t be able to say “oh sure, you can have safe harbour, but you have to be reading everything your users do and you lose it if you’re not searching all their traffic.” There’s a NZ objection here, but it’s unclear to me whether it’s to the whole provision or just the language.
• NZ is the white knight when it comes to anti-circumvention legislation. The ACTA draft contains proposed text saying that if you make or use a tool that breaks “technical protection measures” (DRM) then you’re breaking the law. The NZ negotiators point out that DRM is out of scope for ACTA, but even if it were in-scope there’s still public domain material locked behind DRMs and breaking such DRM shouldn’t be against the law. The paragraphs are beautiful. I quote them here:
  

  NZ: The paragraphs refer to “adequate legal protection” as well as remedies, which is inconsistent [with] the objective of ACTA to establish standards for the enforcement of intellectual property rights and the ACTA discussion paper. In particular, we note that the discussion paper refers only to parties providing “remedies against circumvention of technological protection measures used by copyright owners and the trafficking of circumvention devices.”

  New Zealand does not support protection being mandated against circumvention of TPMs where the underlying work is not protected by copyright. In particular, we do not support protection against circumvention of access control TPMs because access control is not an exclusive right given to copyright owners.

• There’s an odd section about preserving electronic rights management information. I assume it’s meant to preserve owner and license information, but I’m not really clear on the situations that motivated this section. NZ opposes extending protection of RMIs to cover information about performances or the producer of a phonogram.

On the balance this bit isn’t too bad–New Zealand is a good voice for sanity in the negotiations. I have to qualify my assessment in two ways, though:

1. I’m not a lawyer. I may have misread the complex document. I’m not intimately familiar with the current legislation, so I may have overlooked a situation where the negotiated text will throw out a freedom that we currently have (e.g., format shifting).
2. I haven’t spent a lot of time thinking about how specific technology might interact with the proposed treaty. For example, do I run foul of the Rights Management Information protections if I rip a CD and don’t add in title, composer, etc. information?

This treaty is going to need a lot of close examination from people who can read the legal language and yet who are intimately familiar with the possibilities and opportunities of technology. This is why negotiation in secret is a bad idea–our country won’t benefit from the knowledge of experts until the text is set in stone. We’ll get something that likely has flaws, but we’ll have to approve or reject it “warts and all”.