ACTA, the Anti-Counterfeiting Trade Agreement is an international treaty that aims to establish standards of copyright enforcement between contracting countries. You might not know about it, because it is being negotiated in secret. ACTA is in the final stages of negotiation and although we have some clues as to what the proposed standards are, we have been left out of the majority of discussion. This is worrying as the consequences of this agreement are dramatic. Namely, it will entrench the already outdated, unpopular and copyright owner-centric philosophy.
The Flawed Philosophy Behind ACTA
This article explains why the idea of copyright is outdated and needs serious revision to take account of modern opinion and technology. ACTA seeks to encourage and protect this existing, flawed philosophy of copyright.
It is Being Negotiated in Secret
While most governments (including New Zealand) are pressing for greater transparency, no negotiating state has allowed public access to the draft texts.
Legal Status
When finalised, the text of the treaty will be presented to states who may subsequently decide to become signatories or not. Even if a state does sign, that does not incorporate the treaty into domestic law automatically - the state's respective Parliament must do that - signing just binds the state at international law. Nevertheless, I have three concerns with this.
- Smaller states will face significant pressure from larger states to sign if they want trade agreements. I can hear overseas diplomats warning, "We won't enter into this free trade agreement with you because you can't guarantee our intellectual property rights will be safeguarded. Everybody else is. Why won't you just sign?" If the international community has agreed to a bad agreement, no matter how bad it is, there will be huge pressure on them to go along with it, for the sake of international relations.
- Even though international law is not binding on citizens, it will still affect us. There is an important distinction between domestic law and international law: domestic law is binding on you. The Crimes Act, the Copyright Act, the Kiwifruit Industry Restructuring Act are all laws made by our duly elected Parliament, and all bind us. I will elaborate on this.
- Finally, Ministers can create and amend regulations (part of domestic law) that do bind you. For instance, the Copyright Act 1994 gives the executive the power to make regulations. Let's say the Minister in charge of copyright wanted to make ISPs subject to punishment if they fail to disconnect users after accusations by rights-holders (this is one thing ACTA is rumoured to include), the Minister could make a regulation doing exactly that.
Domestic Law vs International Law
If signed and not specifically provided for in a piece of legislation, ACTA binds the executive at international law, even if it hasn't been incorporated into our domestic law. That's to say our government is bound by the terms of the treaty when dealing with other governments. It therefore affects a wide range of activity (all activity where international cooperation plays a part - visas, trade agreements, information sharing, and more) and so it indirectly affects us as citizens.
The situation might arise where a contracting state decided New Zealand was being too slack and hadn't properly implemented some measures in ACTA (the specifics don't matter, it could be anything from the power of customs to seize laptops to the fine being $5,000 too little). That other country could legitimately take New Zealand to the International Court of Justice and obtain a declaration that New Zealand was breaching International Law. No direct harm to us citizens would result, but it certainly would pressure NZ into incorporating ACTA into domestic law, and could result in the loss of trade agreements until "fixed".
So what?
There's a treaty being negotiated on the flawed premises, in secret, and it will affect you. I suggest we make sure our politicians don't sign, let alone legislate for it.
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