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Tuesday, October 28, 2008


Suzor on the ACTA Briefing

Last Friday (24 October), the Department of Foreign Affairs and Trade held a public forum in Canberra on the Anti-Counterfeiting Trade Agreement (ACTA) (see Sophia's previous post here). While House of Commons housemates were unable to attend (conference papers, theses, Remix, oh my!), Nic Suzor has an excellent, substantial account of the forum on his blog here. Here's a taste:
Today I attended a briefing session on ACTA hosted by the Australian
Department of Foreign Affairs and Trade (DFAT). I felt it was a good meeting,
and I really got the sense that DFAT were interested in public participation.
There was a good deal of frustration on both sides of the fence – participants
expressed serious concerns about the lack of transparency in the negotiating
process, and DFAT consistently repeated that they were bound by confidentiality
agreements and could not divulge details of the draft text of the agreement.
Participants in the Tokyo round of negotiations agreed that the full text of the
agreement will only be made available after negotiations have been concluded and
the text finalised. Understandably, there were a number of members of the
audience who were hesitant to accept any of DFAT's assurances as to the content
of the agreement without access to the negotiation documents.

Overall, whilst I think that the process is far too secretive, DFAT appear
to have gone a long way to make available what they can, and they seem genuinely
interested in hearing from interested parties in Australia. Unfortunately, input
will be limited (blind) until negotiations are complete and the text finalised,
but DFAT assures us that they are considering the issues thoroughly and there
will be genuine opportunity to debate whether or not to sign at the end of the

The big points I would take away from the meeting are:
  • Negotiations will go 'well into 2009';
  • The Commonwealth Government is not seeking to drive domestic changes through
  • Overall, there do not appear to be any great changes to Australia's
    enforcement regime – it appears to be more focused on affecting other
  • The Government intends to limit the effect of any treaty to trademark
    infringement and commercial scale copyright infringement;
  • However, statutory damages for copyright infringement are on the table;
  • Next meeting, in December, will consider internet distribution;
  • Camcording is likely to be criminalised;
  • There's still time to make relevant submissions to DFAT – indeed, they
    release a substantial amount of information once they receive the draft
    proposals before every negotiation round;
  • DFAT has a copy of the Cutler report.

Interested readers should head over to Nic's site to read the rest (and also have a look at the outline of Nic's PhD on 'Virtual environments and digital constitutionalism' - looks as though it will be an immense contribution to this area).

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Thursday, June 12, 2008


Gettin' Medieval On Yo' iPod

The prospect of wanton destruction or confiscation of iPods, laptops and other devices suspected of containing copyright-infringeing content has become increasingly real, with news of a proposed international agreement on copyright policing surfacing recently.

A leaked 'discussion paper' on the Anti-Counterfeiting Trade Agreement (ACTA) on Wikileaks, since taken up by other bloggers and mainstream news outlets, has inspired exasperation and outrage in many quarters. It is expected that a draft Agreement will be tabled at the upcoming G8 summit in Tokyo, and it reads like a copyright law wish-list drafted by large record companies and movie studios.

Under the proposed Agreement, border security and other such officials in member States would have powers of search and siezure, where they have a suspicion - and mere suspicion would likely be enough - that an electronic device holds content that might infringe copyright. As Graeme Philipson (The Age) points out, because the discretionary power would be in the hands of security guards and acted upon immediately, there would be no involvement of courts or lawyers, and little chance for appeal. The copyright owner would be removed from the process of suing for infringement upon some evidence that it has actually occured.

In effect, a bunch of security guards at an airport could decide they 'suspect' you of being an infringinger and annihilate your iPod or laptop. (The fact that this could herald a whole new genre of 'profiling', a la 'terrorist suspect of middle-eastern appearance', is another matter. How do you spot a copyright infringer?)

Of more concern is that, because the security officials would also be able to determine what is or is not 'infringing', already-weak fair use/fair dealing type provisions that still offer at least some protection would arguably go out the window completely. Just picture trying to argue with humourless airport security staff that you're carrying a disk full of burned content to use for the purpose of parody. After a long-haul flight. With the prospect of all your other devices being searched as well. And then confiscated because they don't like your attitude.

Obviously, the only people who think this sounds like a great idea have been some US-based record and movie companies. Apparently, they have been throwing 'contributions' at US Congress members to 'encourage' sponsorship of the proposed Agreement.

This all has the vague stench of cultural oppression about it - it's a piece of paper being promoted by culturally and economically dominant groups. It empowers state servants to act outside the law and any kind of due process, make judgements about those crossing a border, and perform random search/seize/destroy activities without room for argument. The US will undoubtedly be urging other nations to sign up (or else). Finally, the fact that the Agreement has been drafted with little public discussion and largely kept secret does nothing to allay the sense that there are some serious problems with the way that copyright 'patrolling' is heading.

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