Interesting comment from Michael Geist today on transparency and ACTA – making the argument that the failure to reveal text is far from normal in relation to plurilateral or multilateral agreements.

Jamie Love on the Huffington Post here.
EFF here.
Howard Knopf here.
Nic Suzor/Electronic Frontiers Australia here.
New Zealand Herald here.
Atlantic here.
The IDG here.
Intellectual Property Watch here.

I would endorse the view expressed in the letter reproduced on the Huffington Post:

The only rationale for keeping the proposed ACTA text from the public is to suppress criticism and critical thinking about the norms that are being proposed. It is Orwellian and an insult to our intelligence to claim that the secrecy of the ACTA text has anything to do with national security concerns, as the term is commonly understood.

A secret process of arbitrary access, conditioned upon signing non-disclosure agreements to block public debate, does not enhance openness and transparency, and does not inspire respect for the norms that will eventually emerge.

We ask that when documents such as proposals for ACTA text are circulated to all governments in the negotiations, and when those documents are shared with dozens of Washington, DC insiders, they also be shared with everyone else.

It’s about time DFAT opened up on this too. With the USTR opening up text to 42 people from various groups, DFAT needs to open up the text: both to expert groups on all sides, and, if they want any credibility at all to the negotiations or their claim to represent the Australian public, to full outside scrutiny. Otherwise they’re allowing a situation where US companies (of various stripes) get all the inside running.

Geist has a new report on ACTA here, with some discussion of the potential inclusions in an internet text. Nothing that would surprise an Australian, given our experience with the AUSFTA.

I do, strongly, agree with Michael here, when he notes that:

On the international front, it provides firm confirmation that the treaty is not a counterfeiting trade, but a copyright treaty. These provisions involve copyright policy as no reasonable definition of counterfeiting would include these kinds of provisions.

From an Australian perspective, I suspect that the temptation for negotiators will be to say that since we are already committed to such rules in the AUSFTA, there is ‘no harm’ in signing up to similar ACTA terms. I think that would be a serious mistake. When Australia signed to such terms in AUSFTA, it did so in a trade deal, where there were other ‘benefits’ (however illusory some might have been). And it retains the freedom to step away from the AUSFTA at some future point if the costs outweigh the benefits. Signing up to such terms in an ACTA would be agreeing that these are to be general international standards: removing any remaining flexibility we have and giving a whole new set of people the right to complain if we want to resile.

It’s that time again. Anti-Counterfeiting Trade Agreement (“ACTA”) negotiators are gathering again, this time in South Korea. ACTA has been off the radar for a little while now, overshadowed by other IP developments. But now we’re up to the 6th round of negotiations, and, it would seem, interesting times await: according to the agenda that’s been published, the negotiators are expected to look at text on internet enforcement issues. As the select group – the US, the European Union, Japan, Switzerland New Zealand, Canada, Mexico, Australia, South Korea, and Singapore – meet again, it’s worth pointing out, again, the problems with these negotiations. Two broad issues: process, and substance. So it’s time to remind everyone what’s at stake here. (more…)

Hi everyone (or at least, those of you who are still there. probably just an echo, right?). Been a while, hasn’t it?

I’d vowed to resist, so far as possible, the blogging thing on IP. There were good reasons for resisting: I have lots of other work to do; I need to spend time working on publishable material rather than current commentary; after my last post a certain friend and colleague started calling me Kimberlee ‘Sue the User’ Weatherall … (ok that last one was just funny). And, of course, there’s been plenty of people to fill the gap: Warwick Rothnie, Nic Suzor, the wonderful folks at the Australian Trade Marks Law Blog…

But you know, every now and then I get the urge to say something. So I’m not going to apologise for radio silence. But I am going to post. Sometimes. When I think something won’t be covered by anyone else!

AFACT have a new (I think?) set of resources for teaching copyright to school kids.You can write your own copyright law (results of that might be interesting). You can even make your own anti-piracy ad! yay! (of course, people have been doing that for a while now… and here…. and here….) :)

I’ve yet to have a proper look, but as Tama Leaver comments:

I’ve never read an educational resource before which feels the need to include this disclaimer (p. 4.):

The resource is not a propaganda exercise. It does make clear to students that there are harmful consequences from film piracy, but it does so through educationally valid processes. It is an educational approach that allows students to face a significant civics and citizenship issue: their role in a society where many of them and their peers are breaking the law.

Actually, what this kind of warning tells me is that this area is really fraught, and that it’s really hard to be seen as treading the line between teaching and propaganda. I wonder who AFACT consulted with, and what testing they did, on this material before publication?

Sorry about the outage – had some technical problems for much of today. Lawfont is back and should be fine now (touch wood)… .

Remember that IceTV judgment I talked about a few times? The one about copyright in TV program guides?

Two more items of information. In a comment on this blog, Peter Vogel points out that the court has now made orders in the case: IceTV is permanently restrained from reproducing in a material form Nine Program Time and Title Information, to the extent that such information reproduces the whole or a substantial part of the Nine Weekly Program Schedule. The whole order can be found here.

Second, I note that IceTV is still providing Channel Nine program guides, saying it is in compliance with the order (I wonder how, says Peter in his comment?). IceTV has also applied for special leave from the High Court to appeal from the Full Court judgment.

Fascinating exchange in the US Supreme Court on statistics, deterrence, and the death penalty. Quote of the day: ‘can a constitutional question of this magnitude turn on econometric rabbit-holes’?

Periodically there’s a debate about whether law profs should have the right to ‘turn off’ internet access in the classroom. I for one can certainly say that as a lecturer, I’m pretty confident I can tell broadly, which of the many students with laptops are tuned out, and at times, I do wish I could just switch it off.

Here’s the best argument I’ve seen though for turning off the wireless – basically, it makes it much less fun, and much more demoralising for the lecturer if students sit and surf. And that means everyone suffers, because a demoralised lecturer is – well, not fun.

Of course the answer is ‘be more interesting!!! and they’ll listen’. Yes, to a degree, but I’m not entirely convinced. After all, can you really fascinate all of the students all of the time? I’ve sat in the most amazing lectures and still seen people checking the old email/facebook/youtube.

Peter Martin has a good summary this morning of the 2020 Summit questions (available here).

Issues to watch:

  1. The governance group, which is discussing the need for a bill of rights; the way in which interactive technology can change the nature of political engagement, the role of lobbyists, think tanks and the media as well as the role and limits of freedom of information laws.
  2. The productivity group, which is discussing what Australia can do to foster innovation, encourage the transfer of ideas across businesses, connect scientists to others in the economy, and what differences the ‘developing digital economy’ (whatever that is) could make ‘right across the education lifecycle’ (whatever that is).

Further to my previous posts, the Telecommunications (Interception and Access) Amendment Bill 2007 was passed by the Senate on 20 September 2007. It went through without a definition of ‘telecommunications data’. The Democrats and the Greens expressed their concerns about the bill generally and its impact on privacy and the vagueness of the term ‘telecommunications data’ but their suggested amendments were negatived. See Natasha Stott-Despoja’s speech and Kerry Nettle’s speech for details.

The Communications Legislation Amendment (Crime or Terrorism Related Internet Content) Bill 2007 was introduced into the Senate at the beginning of this week. Senator Eric Abetz had this to say in his Second Reading Speech:

“The Government’s recent review of the E-Security National Agenda found that the e-security landscape has changed significantly with the emergence of sophisticated, targeted and malicious online attacks. Many of these attacks are associated with websites used by criminals to perpetrate fraud or circulate malicious software.

This Bill proposes to amend the Broadcasting Services Act 1992 to expand the black list of Internet addresses (URLs) that is currently maintained by the Australian Communications and Media Authority (ACMA) to include crime and terrorism related websites hosted domestically and overseas. Black listing cyber crime and terrorism websites is part of the Government’s comprehensive NetAlert – Protecting Australian Families Online initiative.”

The commercial FTA networks, through Free TV, are pushing for a change to the Commercial Television Code of Practice in advance of the imminent Federal election. The changes, which are the subject of public consultation, would allow the commercial FTAs to sell an additional minute of political advertising…


Here’s the latest from Cth AG Phillip Ruddock in respect of the agreement he was trying to broker with the States on the “Material Advocating Terrorism” terrorism changes to the classification regulatory regime. Only NSW and SA agreed to support the changes. As the AG makes clear in the press release set out below, he intends to press ahead with Classification Amendment (Terrorist Material) Bill 2007 despite the lack of agreement at the meeting of the Standing Committee of Attorneys General in Hobart today.

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