The  final text of the controversial  Anti-Counterfeiting Trade Agreement (ACTA) has been agreed upon following a flurry of phone calls and emails across Monday night Australian time. It’s a win for us. Better protection for exports, but we don’t have to change a thing our end.

ACTA is about protecting intellectual property (IP) from counterfeiting and copyright infringement — everything from trademarks to patents, fashion to films to foodstuffs. Mostly the negotiators saw this as an extension of the TRIPS Agreement of 1994, the aim being to create a minimum standard of enforcement that signatory nations would implement in their own laws in their own way.

ACTA’s controversy lay in extending detection and enforcement into the digital realm.

Since ACTA is a trade agreement, negotiations took place behind closed doors, where the wording of cheese labels can be weighed against a million tonnes of coal. But along the way, discussion papers representing participants’ ambit claims were leaked to WikiLeaks and elsewhere, often incorrectly billed as drafts of the treaty itself.

Some of the ideas were certainly draconian. Random border searches of laptops, MP3 players and mobile phones for illegally copied movies and music. An international agency to force internet service providers (ISPs) to cough up details of alleged copyright infringers. Mandatory “three strikes and you’re off the internet” laws for repeat offenders.

They were just ideas. Negotiators were nowhere near converging on an agreed text.

But with three-strikes laws passed in France and in progress in New Zealand and elsewhere … With the Australian Federation Against Copyright Theft (AFACT) case against ISP iiNet making its way through the Federal Court … With well-presented concerns from lobbyists and academics including NYU anthropology professor Gabriella Coleman … Against that background, and with an official information vacuum, it was easy for people to fear the worst, despite DFAT denials.

But in the end none of that became part of ACTA. Even since the draft released in October there have been significant changes.

In the digital realm, the fight against copyright infringement only spreads the net wider than the primary infringer — say to an ISP — if there is “widespread” distribution. Enforcement must be done “in a manner that avoids the creation of barriers to legitimate activity” — effectively ruling out three-strikes laws — and “preserves fundamental principles such as freedom of expression, fair process, and privacy”.

Treaty signatories may exclude from their border controls “small quantities of goods of a non-commercial nature contained in travellers’ personal luggage”.

The Internet Industry Association and AFACT have welcomed the text.

The toned-down ACTA now sets a standard for protecting intellectual property that Australia’s existing laws already meet. Our negotiators are chuffed.

That doesn’t mean parliament couldn’t introduce tougher laws as a result of lobbying by the IP industries. But if that happens, it’s nothing to do with ACTA.

The final text published Monday (Tuesday Australian time) concludes three years of negotiations between 37 countries: Australia, Canada, the EU representing 27 member states, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the US.

The text now goes through “legal verification” in Sydney from  November 30 — a technical process to ensure it conforms to treaty drafting standards, but no substantive changes can now be made. It then goes to parliament’s Joint Standing Committee on Treaties (JSCOT), possibly with a public consultations round, before the government makes a final decision on ratification. That process is likely to take us to mid-2011.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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