Activists sign petition to open up ACTA talks

Concerned stakeholders from the Internet industry and legal communities have established an online petition calling for Governments party to ACTA (the Anti-Counterfeiting Trade Agreement) to open up their negotiations to the public.

The Wellington Declaration, available online for concerned individuals to sign before April 23, was created at the conclusion of the PublicACTA conference on Saturday in Wellington, New Zealand.

PublicACTA was timed to raise the issue of the lack of transparency in the ACTA process, prior to the representatives from the 27 countries negotiating the treaty arriving in Wellington to begin the latest round of talks.

The PublicACTA conference featured speeches from prominent Canadian commentator Michael Geist and Australian academic Kimberlee Weatherall.

The ensuing declaration demands greater transparency and wider participation in ACTA negotiations. It calls for user privacy to be considered within the agreement, that the internet and those that provide access to it be protected, and that the treaty provide enough flexibility to preserve local customs and laws.

The Declaration demands that ACTA negotiations, which are held behind closed doors by Government officials bound by non-disclosure, to be made more transparent to the public "including a release of the text after each round of negotiations."

Leaks of the draft text have been common to date, but the declaration nonetheless calls for a more official attempt at transparency. Leaks from the most recent round of talks have been the subject of intense scrutiny.

The declaration also calls for ACTA negotiations to be more participatory, opening up to the concerns of representatives from education and health care groups, the arts and Information Technology industries, as well as NGOs and consumer rights groups.

Currently, negotiators from Australia are limited to individuals representing the Department of Foreign Affairs and Trade (DFAT), IP Australia, Customs and the Attorney General's Department.

The declaration also calls for the treaty to recognise the sovereign rights present in any given nation "to adjust copyright, trademark and patent law to reflect local culture, preferences and conceptions of the public good."

Representatives from DFAT have previously assured iTnews that Australia has no plans to adjust existing intellectual property laws to harmonise them with ACTA. Australia is already bound by a Free Trade Agreement (AUSFTA) with the United States of America and Australia's Federal Government insists that it is only a party to ACTA discussions to force other nations to agree to similar standards.

The petition demands that ACTA should be "limited to an agreement regarding enforcement against counterfeiting (the large scale commercial production of illicit physical goods)" and not become an attack on the private rights of individuals. There are concerns among legal observers that ACTA will make criminal offences of intellectual property transgressions that previously were civil matters.

The declaration also calls on parties to ACTA to protect some of the core attributes of the internet - as a place of "creativity and innovation, the sharing of knowledge, citizen engagement and democracy" and an "engine of economic growth and opportunity."

It demands that graduated response schemes or "three strikes" provisions - in which internet subscribers accused of downloading pirated material are disconnected from the internet - are left off the ACTA negotiating table.

"Disconnection, account suspension, or limitation of service, have disproportionately negative consequences for civil rights. ACTA cannot require or allow that it be an acceptable sanction for copyright or trademark infringement," the declaration reads.

It also argues that intermediaries such as ISPs, web site hosts and search engines must be "protected and encouraged" under safe harbour agreements that are "not predicated on enforcement obligations designed to address third-party infringement."

Technological protection measures - such as region coding or other DRM techniques - are labelled as unnecessary in the face of copyright law.

The declaration also demands that damages in any intellectual property case continue to be determined by "competent legal authorities" (ie the courts) within each sovereign nation. Damages, it said, should be proportionate to the intent to harm and the actual harm caused by the infringement, and available at a judge's discretion rather than by a statutory damages regime.

Finally, the declaration questions the need for ACTA at all, highlighting that the World Intellectual Property Organisation (WIPO) already has "public, inclusive and transparent processes for negotiating multilateral agreements on (and a committee dedicated to the enforcement of) copyright, trademark and patent rights."

Local reaction

Matt Dawes, copyright advisor at the Australian Digital Alliance (ADA) was one of several Australians to participate in PublicACTA. He described the Wellington Declaration as a "strong statement from the public interest perspective" that "raises a resolute set of expectations for the coming round of negotiations."

"Participants made the Declaration in recognition that ACTA threatens to upset the delicate balance of Australian and New Zealand copyright law -- a balance that protects consumers, enables access to information and is fundamental to the success of the digital economy," he told iTnews from Wellington.

"It was truly spectacular to see so many people independently raise the same concerns about ACTA. To reach unanimous agreement on such a cognisant set of declarations by such a large and diverse group of people in such a short period of time is almost unheard of."

Dawes said that despite assurances from DFAT that "three stikes" was off the table, "prominent among the concerns raised was the continuing threat of three strikes provisions" and the impact of forcing ISPs to act as intermediaries in copyright enforcement.

Dawes said that even if the Australian Government changed no laws to meet ACTA, the trade agreement sets a dangerous precedent.

"The real danger lies in the extrapolation of ACTA principles through the political lobbying and judicial processes," he said.

"I would encourage all those who value the future of Australian innovation, research, education and access to knowledge to add their voice to the Wellington Declaration and digitally sign the petition."

Stay tuned to iTnews' analysis as the ACTA talks continue this week.