Solid scrum in danger of being wheeled: ACTA vs TPPA

Back in April 2010, with the negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) due to take place in Wellington in secrecy, many of us were concerned. We came together under the banner of the acta.net.nz coalition and organised PublicACTA on Saturday, 10th April 2010.

PublicACTA was designed to be everything the ACTA negotiations weren’t- public, transparent and open.

The result was the Wellington Declaration. Ultimately, it was signed online by 11,081 people. Reflecting the global nature of the concerns, less than one-fifth of the signatories were from New Zealand. The Wellington Declaration was given by the New Zealand negotiators to the official delegations from all the countries in attendance at the Wellington negotiating round.

The Wellington Declaration put forward the following general matters and principles:

• Limit ACTA to an Agreement regarding enforcement against counterfeiting (the large scale commercial production of illicit physical goods).
• Preserve the Internet, especially its open protocols and its generativity; the fact that anyone can connect and anyone can build new applications, and find new uses without discrimination
• The World Intellectual Property Organisation (WIPO) is a preferable forum for the negotiation of substantive provisions for negotiating multilateral agreements on copyright, trademark and patent rights
• ACTA assumes copyright is under threat, and further protection must be developed. A clear statement of the problem that ACTA is designed to solve is required, with independent evidence to support it.
• In terms of process, ACTA needs greater transparency, independent impact analysis, wider participation, and local flexibilities.

PublicACTA and other local movements around the world kept up the pressure for transparency and scope limitation. ACTA may in fact be remembered for leaks of its secret text and the European Union’s opposition.

It’s now wound its way to an official signing ceremony in Tokyo on 1 October. The European Union isn’t ready to sign yet but New Zealand has announced that it will be there to sign in the name of “supporting our growing innovative and creative industries.” The Minister of Trade says, “This would require the government to make some minor amendments to the Copyright Act 1994 and the Trade Marks Act 2002 and would be subject to the usual ratification process, including public consultation and scrutiny by parliament.”

The final ACTA text is supposed to be on the MFAT and MED websites but I was only able to find the one released by the European Union which matches the one released by the US.

The list of law changes required in New Zealand look reasonably straightforward but the devil may well be in the detail of some of them. Overall, as Rick Shera pointed out, the way the treaty process works, public scrutiny happens so late that it’s pretty much a done deal.

The Next Frontier
The sharp claws of ACTA were cut by the European Union. Sure PublicACTA and other community movements helped but, realistically, without the European Union countering the overwhelming US pressure, things would have been very different.

The US itself is readying to skirt the ACTA provisions while seeking tough enforcement measures from other signatories.

What hasn’t changed is the capture of US trade negotiators by hardline US corporate commercial interests. If anything, economic pressures in USA have only made these pressures more intense and the arguments more powerful. Yet, fundamentally, these corporate interests are using US muscle to push other countries to legislate what they can’t hope to get away with in their own country.

And so the next frontier of the trade treaties war is the Trans Pacific Partnership Agreement (TPPA). Worse, the changes to New Zealand laws they want, especially related to intellectual property, are now so extreme that, as Lawrence Lessig said in his recent visit to New Zealand for NetHui, it’s in the realm of bullying.

We said, he said
Clearly kneecapping Pharmac under US pressure is unlikely to be easy to push on to a skeptic New Zealand public. There will be a temptation to give in on “soft” areas like intellectual property to get a deal done.

InternetNZ was concerned enough about this prospect to write to the Prime Minister on the eve of his US trip in July. We urged, “... no further tightening of New Zealand IP law should be mandated by the TPPA. Doing so would not be in the national interest. We urge you and your Government to maintain this position.... New Zealand already has in place reasonable approaches to deal with intellectual property infringing on the Internet, and that any request for further measures is out of place and inconsistent with U.S. practice”

A few days ago we got a reply from the Hon. Tim Groser, Minister of Trade. He said, "... we need to work hard to advocate for our position.... New Zealand has been seeking copyright rules that are consistent with our current international obligations, but that are flexible and can be tailored to suit the domestic circumstances of the TPP parties.... In any negotiation there will be concessions. However the agreement as a whole will need to be in New Zealand’s interests."

Bottom line
With ACTA we had a solid scrum. However, without the European Union, our TPPA scrum is in danger of being wheeled.