Latest ACTA draft to be made public

Representatives from 27 countries have agreed to release the latest draft text of the Anti-Counterfeiting Trade Agreement (ACTA), a global effort to harmonise intellectual property laws that has been governed by secrecy to date.

The ACTA treaty, which is expected to have significant implications for both internet service providers and those internet users that choose to share copyrighted content, is being led by the United States and includes representatives from Australia, New Zealand, Japan, Europe and Canada.

Civil rights activists and the internet community at large have been calling on the talks to be more transparent and participatory. Stakeholders from Australia and New Zealand established an online petition calling on the 27 Governments party to the talks to open up the process last week as negotiators met for a new round of negotiations in Wellington, New Zealand.

Negotiators have responded by promising to release a draft of the agreement by Wednesday April 21.

"Negotiations have now advanced to a point where making a draft text available to the public will help the process of reaching a final agreement," the statement said. "Participants have reached unanimous agreement that the time is right for making available to the public the consolidated text coming out of these discussions, which will reflect the substantial progress made at this round."

Prior drafts of the ACTA text have been leaked by insiders, complete with comments as to the negotiating positions of member countries. But these negotiating positions will be omitted from the official released draft.

"In agreeing to release publicly this draft text in the particular circumstances of this negotiation, participants reaffirmed the importance of maintaining the confidentiality of their respective positions in trade negotiations," the negotiators' statement said.

The statement also reiterated promises by Australian negotiators that ACTA would not mandate a "three strikes" or "graduated response" policy, under which ISPs would be forced to cut off internet subscribers accused of filesharing.

"While the participants recognise the importance of responding effectively to the challenge of Internet piracy, they confirmed that no participant is proposing to require governments to mandate a 'graduated response' or 'three strikes' approach to copyright infringement on the Internet," the statement said.

Read on to Page Two for local reactions...

Transparency welcomed

At home, academics and observers welcomed the new policy.

"We welcome the decision to release an official version of the draft text as a significant stride towards greater transparency," said Matt Dawes, copyright advisor at the Australian Digital Alliance (ADA).

"It is an acknowledgement of the mounting pressure on governments to open up the negotiations as a result of leaked documents and rising public and political concern. It represents an opportunity to move away from the hysteria... and to focus on meaningful public discussion of the real issues."

Internet Industry Association chief Peter Coroneos said it was a "positive if overdue development".

"It will now afford us an opportunity to consider the implications of what previously was only available via unofficial channels," he said.

Kimberlee Weatherall, senior lecturer in law at the University of Queensland said the decision was long overdue.

"I'm very pleased to see that the parties have finally opted in favour of greater transparency. I think this will facilitate discussion and better enable interested parties to make sensible and focused submissions," she told iTnews. "It's the right result, and I'm glad it's been reached, although it's a shame it's taken this long."

Weatherall said some credit was due to some staunch Government officials within the EU as well as Australia's own Greens party which had asked questions about ACTA transparency in Parliament.

Weatherall noted that since the text of prior drafts had already been leaked, all that will be gained from the official release will be "showing how much progress has been made."

But she and Dawes are nonetheless anticipating many hours studying the released draft to consider the implications for Australians.

"The most important development to flow from this decision is that for the first time, governments will be able to provide detailed comment on public concerns," Dawes said. "Previously, governments have been unwilling to comment on the veracity of leaks or the specific issues arising from them.

Dawes said the ADA looks forward to discussions with Australian negotiators - led by the Department of Foreign Affairs and Trade (DFAT), after studying the release.

"Analysis of leaked documents has revealed that ACTA may conflict with Australia's copyright law - which protects consumers, enables access to information and is fundamental to the success of the digital economy," he said.

Dawes remains unconvinced that ACTA is not aimed at introducing a three strikes policy.

"The statement that the three strikes procedure will not be mandatory under ACTA must be taken with a grain of salt," he said.

"The real threat from ACTA is its encouragement of three strikes. Analysis of leaks reveals that ACTA will require ISPs to deter online infringement, and that this may be done by cutting off someone's internet access. The clear implication is that anything less than three strikes, which dealt only with termination of repeat infringers but did not seek in any further way to reduce infringement would be insufficient.

"The next question is, to what extent will voices representing the public interest perspective have a chance to be heard and to influence the outcome of the negotiations? So far it has been a one way street for rights holders."

Negotiators expect to meet in Switzerland in June 2010 and complete the ACTA text by the end of the year.