Foreign Affairs defends ACTA

The Department of Foreign Affairs and Trade (DFAT) has dismissed criticism that Australia's ratification of the Anti-Counterfeiting Trade Agreement (ACTA) will lead to internet service providers being copyright police, saying it wouldn't require changes to Australian law as it stands today.

ACTA introduces a legal framework for 37 countries on copyright protection as a measure to curb the flow of counterfeit goods across the globe and digital copyright infringement for music and films.

The agreement has drawn harsh criticism from privacy and copyright activists since discussions began in 2008, because of what appeared to be hard-line tactics to crack down on piracy — for example, a requirement for signing nations to introduce a three-strikes law — and because of the discussions' clandestine nature. However, the finalised, less strict agreement, completed in October 2010, was received better. For example, the Australian Greens had been wary of the agreement during its various draft rounds, but gave the final version a tentative tick of approval.

So far 30 out of the 37 countries have signed onto the agreement, including Australia, but no countries have yet ratified it. ACTA will come into force 30 days after the sixth party ratifies the agreement

Last month the European Commission suspended the European Union's approval of the ACTA treaty, with Germany, the Netherlands and Poland rejecting the treaty in its current form.

DFAT assistant secretary in the Trade Policy Issues and Industrials Branch, George Mina, told the joint parliamentary committee on treaties today that there had been "some misinformation in the debate" about the ACTA treaty, specifically around section five of the treaty dealing with digital copyright infringement.

"Activities that were legal before ACTA was ratified will not be illegal after," he said. "ACTA will not infringe on civil liberties. ACTA will not impact on freedom on the internet. [ACTA] will not require [internet service providers (ISPs)] to monitor the activities on individuals," he said.

Mina said it would also "not lead to censorship on the internet" and "will not require ISPs to terminate users' connections".

Although section five lays out that ISPs may be required to hand over customer information to rights holders for customers suspected to have infringed copyright online, the rights holders will have to file a "legally sufficient claim" to get a hold of this information. Mina said that the ACTA agreement will not change how the law stands today in this area.

"These provisions represent a very small part of the agreement and are very limited in their effect," he said. "This is to encourage internet providers to work with copyright owners to curb the infringing activities of their users."

Earlier in the hearing, Australian Digital Alliance's copyright adviser Ellen Broad told the committee that the ACTA treaty would distort the balance of copyright law, both in Australia and overseas.

"Internationalising Australian standards for copyright law is not a proper starting point," she said.

Broad said it could lead to a potential policing of communications between users, and the scale of the agreement would extend to every day commercial activities, like including copyrighted material in the body of the email.

While laws may not need to be changed now, signing onto the ACTA treaty could make it difficult to reform copyright law in Australia, she said.

"It is still open to debate in Australia as to whether our own high IP standards in Australia are appropriate," she said. "It could make it difficult to amend domestic policy in Australia's interest."

Broad was most critical of the lack of transparency around the negotiations for the agreement. She said that while civil liberties groups were invited to discuss the treaty, the full text of the negotiations for the treaty were not available to them at the time.

DFAT rejected this, saying that the government had "worked hard" to ensure openness and transparency during the negotiation process.

"We did argue vociferously during the negotiations for the text to be released, and April 2010 was the first occasion for the full negotiation text to be released," Mina said. "Anybody who read the April 2010 text would have seen the plethora of views and negotiating positions on the table at that time.

"It's not as though people weren't able to influence outcomes at that stage. We provided full access to our negotiating team."

The Australian Copyright Council and Music Industry Piracy Investigations (MIPI) also made an appearance at the hearing in support for the treaty. The council's executive director Fiona Phillips told the hearing that ACTA "provides a practical opportunity and response, which Australia should be part of".

She said that the treaty should be looked at in the context of the Australian legal framework, and that the enforcements under the law are ones that exist in Australian law today.

She said digital copyright infringement was having a "big effect" on the film, music, photography and publishing industries, but admitted that there was a debate how best to quantify exact costs such as whether it is acceptable to equate one download with a lost sale.

MIPI executive director Vanessa Hutley said ACTA was about building information sharing between nations and addressing copyright infringement on a global scale, as well as recognising the need for education about intellectual property rights.