Secret negotiations threaten sensible copyright laws, says Canadian expert

Canadian academic Michael Geist has been a leader in the debate over the controversial Anti Counterfeiting Trade Agreement (ACTA) treaty being negotiated between the US, Canada, Japan, New Zealand, the EU and a number of other countries.

In the absence of official information channels, his blog, along with Wikileaks, has become the go-to destination for information, leaked documents and interpretation of what the treaty may mean.

Geist and the latest round of ACTA negotiations are coming to New Zealand next week. He will attend events organised by InternetNZ and the Privacy Commissioner and the Law & Technology Committee of the Auckland District Law Society. Computerworld New Zealand caught up with him by email this week to find out what’s on his mind — and his agenda.

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How did you first become aware of and involved in the ACTA debate?

I first became aware of ACTA when it was announced in October 2007. The announcement occurred simultaneously among many ACTA partners. It was immediately apparent that the ACTA talks could have a significant impact on the domestic copyright rules in Canada and so I felt it was important to become engaged in the debate.

What’s on your agenda in New Zealand?

My primary reason for the trip is the PublicACTA event, scheduled just prior to the actual ACTA negotiations. I think it is important to use each round of the ACTA talks as an opportunity to raise public awareness about the treaty and its implications. In addition to the PublicACTA event, I’ll be giving a talk on privacy law developments in Auckland for the Privacy Commissioner’s Office.

Why should the average person care about ACTA?

ACTA is important to the average person because it could have major implications for national privacy laws, copyright laws, and the way we interact with the Internet. This is particularly true for countries like Canada and New Zealand, who have not moved in lockstep with the US on copyright policy. The ability to continue to craft national laws that reflect the national interest could be directly affected by ACTA.

There have now been a lot of leaks of ACTA documents. In your mind, what fears have these alleviated about the proposed treaty and what have they heightened?

I don’t think the leaks have alleviated any fears. Rather, the leaks have confirmed fears about the possibility of using ACTA to establish a raft of new laws including anti-circumvention rules, three-strikes policies, increased border searches, statutory damages, new injunctive powers, anti-camcording rules, and new criminal measures.

From what you have seen, what has been the role of the movie and music industries in developing ACTA? Do you see evidence of privileged access?

It hard to know whether those groups have enjoyed privileged access, but it is abundantly clear that the proposals are a veritable wish-list from those organisations.

President Obama says progress on ACTA is needed while Hillary Clinton defends a free and open Internet. Are they contradicting each other or is there some sort of elusive logic in the two statements?

It would appear that the usual rules do not apply in the U.S. when it comes to copyright. Free speech, intermediary liability, net neutrality, broadband policy — all key digital issues and all issues with carve outs or differing approaches for copyright.

New Zealand’s Ministry of Economic Development tried to get traditional (Maori) intellectual property rights included in the treaty and then appears to have abandoned that attempt. Where does traditional IP stand in the debate?

It does not appear to be part of the treaty. Nor should it be — this is supposed to be about commercial counterfeiting, yet the agreement extends far beyond that already.

What other issues do you think New Zealanders should be alert to in ACTA and in broader attempts to protect intellectual property online?

Despite its size, New Zealand has been one of the most important countries in the world on copyright policy. For example, on issues such as anti-circumvention legislation (legal protection for digital locks), it has carved out a “made-in-NZ” approach that is frequently cited as a model for other countries considering similar legislation.

It would be a serious setback if New Zealand’s ability to craft sensible copyright policy solutions was lost. ACTA threatens to undermine the ability for countries like New Zealand (and Canada) to make their own choices, as copyright policy shifts from Wellington to Washington.

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