I’ve been following, in the blogs, the various comments, concerns, and (in some cases) downright scare-mongering about the proposed Anti-Counterfeiting Trade Agreement. I’ve been spurred to finally write something by this misleading, scare-mongering comment in the Sydney Morning Herald. For people wanting a more balanced view of what might be some of the problems, I recommend Bill Patry (Pt I, Pt II, Pt III); Michael Geist (particularly here) and this Ars Technica article. There’s an interesting article on IP Watch too.

I’m inclined to agree with Geist and Patry that the way these negotiations are being conducted is a long way from desirable. They are confined to a small number of ‘like-minded’ countries: initially including Canada, the European Union (with its 27 Member States), Japan, Korea, Mexico, New Zealand, and Switzerland; also including Australia after we decided to join in. Actually, that, in itself, would not be a problem really. There’s nothing to stop small groups of countries negotiating whatever standards and cooperation mechanisms they like as between themselves. No, the problem lies in two other aspects: the apparent secrecy of the negotiations (last time Australia negotiated an IP agreement in secret we ended up with all kinds of problems), and the use that no doubt will be made of the treaty once agreed. No doubt it will be offered on a ‘take it or leave it’ basis to other (less like-minded) countries – as a precondition of other things those countries want.

Funnily enough, it’s not just bad from a ‘we believe in democracy and transparent government’ perspective either. I’ve said it before, and I’m not the only one: it is this kind of thing that brings IP law generally into disrepute. It is such easy fodder for those who preach that copyright, or patent, or trade mark, deserve no respect. Media coverage of ‘secret negotiations’ in the mainstream news cement an increasing impression in consumers that such rights really have nothing to do with them. How can we tell people to respect intellectual property rights when the form those rights take cannot, on any view, be considered a ‘social compact’, democratically determined, or even a matter of national economic policy? Not to put too fine a point on it – why should we – as Australian consumers, or ordinary people worldwide – obey the IP dictates of countries like the US negotiated without our input or even knowledge? Seriously, no one could say that IP law doesn’t have an image problem. You would think, then, that those pushing for such rights would take some account of their PR problems.

The negotiations, and the documents, may be secret, but I have a feeling that we can piece together much of what the US, at least, would be putting on the table based on the ‘Discussion Paper’ published on Wikileaks and recent US bilateral trade agreements. So if I were, say, an Australian, or a Canadian trade negotiator, what would I be worried about?

“Criminal sanctions … to be applied to IPR infringements on a commercial scale:
– IP infringements for purposes of commercial advantage or private financial gain,
– significant willful infringements without motivation for financial gain to such an extent as to prejudicially affect the copyright owner;
– imports and exports…”

This largely mirrors the kind of language that we see in AUSFTA (17.11.26) – although the addition of that word “private” is very interesting. Without the word ‘private’ in there, you can argue that criminal provisions are meant to be applied in a commercial context. With the word private, you could argue that even infringement aimed basically at saving money (using pirate Microsoft software, instead of full price stuff) is sufficient to warrant criminal sanction. I’d be trying to retain some level of flexibility there by getting rid of any concept of private financial gain. One hopes too that ‘import’ means commercial import!

“authority to seize and destroy IPR infringing goods and equipment and materials used to make them”

The question about this kind of provision is the extent to which it allows for seizure and destruction of general purpose computers, DVD drives, etc – that can be used for infringement but also for many, many other things. We had discussion of this issue in the context of drafting enforcement guidelines here in Australia. And there’s other issues – what if the infringer is not the owner of the device…? Anyway. Any such provision really needs to be drafted at a high level of generality and leave room for countries to implement procedural protections in accordance with their own legal traditions.

Damages adequate to compensate, including measures to overcome the problem of right holders not being able to get sufficient compensation due to difficulty in assessing the full extent of damage.

If that means statutory damages, we don’t want it. But if that means the kind of thing we’ve done here in Australia – allowing for ‘additional damages’ and courts to draw common sense conclusions from the proof of some infringement – then I’m less concerned. Again, the level of generality of the drafting matters.

That’s just a few thoughts. What even these preliminary thoughts show (and what the Australian experience with AUSFTA shows) is that words matter – in particular, single words can make a difference. And that, of course, is why there should be consultation on a draft.