Adam Gifford: Anti-piracy laws from the Dark Ages

An Anti-Counterfeiting Trade Agreement looks like a global extension of the US enforcement policy of IPs. Photo / Getty
An Anti-Counterfeiting Trade Agreement looks like a global extension of the US enforcement policy of IPs. Photo / Getty

Mining national parks. Merging government departments. That's not all your government wants to do in secret.

Next month the Government is hosting the eighth round of international negotiations to come up with an Anti-Counterfeiting Trade Agreement, known as ACTA.

This is real secret squirrel stuff. It started just over three years ago as a proposal from the United States to Canada, and it has since expanded to include Australia, New Zealand, the European Union, Japan, South Korea, Mexico, Morocco, Switzerland, Singapore and the United Arab Emirates.

Its scope has also expanded from fake Rolexes and Gucci bags to setting up a new body to control what can go on the internet.

If you're wondering why a new body is needed to do this, you're not alone.

According to Michael Geist, a Canadian law professor and authority on technology law issues who has been leading opposition to ACTA, the people driving the process have acknowledged its aim is to sidestep the World Intellectual Property Organisation, or WIPO.

Geist will be in New Zealand on April 10 to speak on PublicACTA, an event internet New Zealand are organising to push for more transparency.

Internet NZ policy director Jordan Carter says ACTA makes the campaign against section 92 of the Copyright Act that allows termination of internet access for alleged copyright breaches - just a taste of things to come.

Leaks from meeting participants indicate ACTA could include a "three strikes" rule, where internet service providers would be required to shut down service if someone downloads copyright material, or face hefty fines.

Carter says the public outcry in against section 92 showed New Zealanders care about copyright issues and are keen to work through what their rights may be in the internet age - something ACTA doesn't want to give them a chance to do.

"What they claim is that ACTA is aimed at being a framework for intellectually property enforcement, especially copyright, but rather than those high-level commercial problems, it seems to be going down to the level of individual infringements of copyright," Carter says.

"What it looks like is an extension of the US drive to toughen up online enforcement of IP by making its Digital Millennium Copyright Act global. It's hoping friendly countries will create a new benchmark, and drive it through multilaterally.

"This is a problem. The law is trying to catch up with code, and the technology keeps moving away."

It raises many unsettling issues, such as whether third parties, ie ISPs, should be liable for what their customers do.

The secrecy of the ACTA process raises speculation about what's behind it.

Clearly, the huge US entertainment industry, with its massive political clout and appalling record of technological obtuseness, has a role.

The internet has fundamentally disrupted the business models of these content producers and the dinosaurs are lashing about with their massive tails.

They have lost the argument about downloading killing music, in the same way as the record companies lost the argument about home taping killing music and film studios fought video and DVD until they worked out how to get revenue from the new distribution channels.

Now the musicians are going out on their own, using social media and live shows to build an audience.

Carter points to another technology lawyer, Bill Patry, for exposing the short sightedness of the current approach in his book Moral Panics and the Copyright Wars.

"His basic case is that the US in the early 1980s was looking for new export industries. Hollywood pitched that it was one, if its copyrights were protected."

The emergence of major US firms who make their money from internet technology mean the US should now be balancing the interests of content providers and platform providers, but the trade bureaucracy is so focused on that original game plan it cannot change.

"Ideally, we need to reconsider copyright law in the internet age. The world of distribution has changed," Carter says.

"Given the way intellectual property law is structured at the moment, it is hard for people online to know what their rights are."

He says threats aimed at getting people to take down content in dispute makes the whole area a lawyers' paradise, and ACTA is an attempt to enforce old-world concepts.

"In the New Zealand context, given that we are more a consumer than a producer [of internet content], it is not clear why we should be so involved pushing this through," Carter says.

He suspects it's part of a desire to get a free trade agreement with the US, with some in the Ministry of Foreign Affairs and Trade prepared to trade off copyright for better terms in areas like agriculture.

"I don't think they get all the potential digital implications for New Zealand."

While the Government says it is not connecting ACTA with a free trade agreement, the regulatory impact statement for the Copyright (Infringing File Sharing) Amendment Bill, which will replace section 92A, specifically mentions ACTA and says "our trading partners legitimately expect New Zealand to enforce its laws in the interests of their creative industries."

InternetNZ is hold a public meeting on ACTA agreement at the Rendezvous Hotel in Auckland from 2pm to 4pm today (March 24), featuring Jordan Carter, former internetNZ president Colin Jackson and 2010 Victoria University Cyberlaw fellow Jonathan Penney.

PublicACTA is at the Wellington Town Hall on April 10.

- NZ Herald

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