For activists engaged in attempting to defend online freedom against government and corporate encroachment, there was a rare win overnight when the European Parliament voted to reject the Anti-Counterfeiting Trade Agreement (ACTA), and overwhelmingly so: the Treaty was rejected 478 to 39.
ACTA was signed by Australian, the United States and other countries in October last year and the EU signed in January, but the treaty has not been ratified anywhere and cannot come into force until six states have ratified it. With ACTA now a no-goer in the European Union, that appears increasingly unlikely.
The treaty was negotiated in secret between a growing group of states between 2006 and 2011, and saw a hard-fought battle to prevent it being used as a vehicle for an aggressive push by the US to impose draconian copyright laws favouring American corporations. The agreed text saw most of the worst clauses, such as mandating searches of iPods and laptops for pirated content at borders, removed, but left intact requirements for ISPs to pass on personal information to content companies and bans on circumvention technologies.
Following the defeat of the SOPA bill in the US in January, ACTA became the next high-profile target for online activists, who drew first blood in Poland in February when the ratification process in that country was halted amid protests (including Polish MPs wearing “Anonymous” Guy Fawkes masks). It was downhill from there for the treaty across Europe.
Unusually, the treaty also hit the fence in Canberra after Craig Emerson participated in its signing in Tokyo last year. “This treaty will help stem the burgeoning global trade in counterfeit and pirate materials, worth many billions annually,” he proudly announced at the time. But the Joint Parliamentary Committee on Treaties, chaired by Labor’s Kelvin Thomson and deputy-chaired by cyber-savvy South Australian Liberal Simon Birmingham (the Greens’ Scott Ludlam is also a member), thought otherwise.
In a rare move and in what amounts to a significant defeat for the Department of Foreign Affairs and Trade, whose officials stoutly defended the treaty through the committee process, the committee recommended that ACTA not be ratified until a series of steps had been taken, including “an independent and transparent assessment of the economic and social benefits and costs” of the treaty, the completion by the ALRC of its copyright inquiry (due at the end of next year), clarification of terms and the development of legislative exemptions and protections. And future consideration of ratification should have regard to what’s happened in other jurisdictions like the EU and the US.
The committee explored in some detail the highly secretive nature of the negotiation process for ACTA. DFAT’s contribution to that consideration bordered on the delusional, with the department insisting that the consultation process for the treaty had been an unusually open one. As the committee subtly showed, however, the only other people who agreed with DFAT about that were the various representatives of the copyright industry who were the only beneficiaries of ACTA.
What was much less subtle, indeed what amounted to a ferocious slapdown of DFAT, the committee accepted the views of several ACTA critics (particularly Kimberlee Weatherall, who has forensically dissected ACTA’s flaws) about the secret nature of the negotiation process. “The most troubling aspect throughout the development of ACTA has been the opaque nature of the process … there is no valid rationale for the level of secrecy that DFAT has maintained for what is essentially a copyright treaty … 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, and while stakeholders were invited to make inquiries to DFAT at any time, queries as to substantive aspects of the negotiating texts were not satisfactorily answered.”
Don’t count on ratification of ACTA any time soon. And even if the government ignored the committee’s recommendations, there’s a real question about exactly where the other five ratifications are going to come from to make it operational.
In other committee news, Attorney-General Nicola Roxon’s reference to the Joint Committee on Intelligence and Security for a national security review, including consideration of mandatory data retention, has yet to be picked up a full two months after she wrote to the committee. “We’re continuing our discussions with the committee,” a spokesperson for Roxon said. The original deadline for the review was July 31.