Australia will not adopt ACTA, yet

This is an ex-treaty!

Today the Joint Standing Committee on Treaties of the Australian House of Representatives has released a report on the implementation of the Anti-counterfeiting Trade Agreement (ACTA). The report is supposed to look at ACTA and make recommendations to the government about its implementation. I was positively impressed with the document in general, it is balanced, has depth, and covers all of the important aspects of the agreement. The fact that the document heavily cites Matthew Rimmer and Kim Weatherall is an added surprise, congratulations to both!

As the title implies, the committee has decided to recommend that ACTA should not be implemented yet, as there is a strong possibility that the agreement will not be implemented by the European Union and has not been ratified by the US, which would leave Australian stakeholders at a competitive disadvantage. This is, to my knowledge, the first official reaction from outside of the EU to the rejection of ACTA in four different European Parliament committees, and it shows that if the battle against ACTA is won at the Parliament, this will send strong signals to other partners that the agreement will not pass.

The report reads in its Recommendation 8:

“That the Anti-Counterfeiting Trade Agreement not be ratified by Australia until the:

  • Joint Standing Committee on Treaties has received and considered the independent and transparent assessment of the economic and social benefits and costs of the Agreement referred to in Recommendation 2;
  • Australian Law Reform Commission has reported on its Inquiry into Copyright and the Digital Economy; and the
  • Australian Government has issued notices of clarification in relation to the terms of the Agreement as recommended in the other recommendations of this report.”

The reason for this is explained in more detail:

“The Committee considers that it would be wise to adopt a conservative approach to ratification of this treaty. If this is the future of copyright and IP regulation, then potential parties to the treaty, like the EU, will, after consideration, ratify this treaty. However, copyright and IP holders in Australia will not be best served if the treaty is ratified by Australia and a handful of others, but is not compatible with the copyright and IP regimes applicable in major creative centres as the United States and Europe.
It is prudent, therefore, that ACTA not be ratified by Australia until this Committee has received and considered the assessment of the economic and social benefits and costs of the Agreement, the Australian Government has issued the notice of clarification in relation to the terms of the treaty as recommended in this report and the ALRC has reported on its inquiry into Copyright and the Digital Economy. In considering its recommendation to ratify ACTA, a future Joint Standing Committee on Treaties should have regard to events related to ACTA in other relevant jurisdictions, including the EU and the US.”

This is the logical step for Australia to take, particularly because the report covered some of the wider concerns about ACTA, namely its secrecy, lack of evidence on cost and impact, lack of clarity, and the potential inclusion of patents into criminal enforcement. I was also encouraged by the fact that when the Australian government conducted a National Interest Analysis (NIA) of ACTA, it offered no evidence whatsoever of how the treaty would solve perceived problems in digital copyright enforcement. Moreover, according to the report “the NIA does little to demonstrate the scale of the problem as it affects Australia and therefore the need for Australia to sign a new treaty”. However, the killer phrase for me is the following:

“According to the NIA, Australia meets all obligations set out in ACTA through legislation already in force and existing common law.”

This is consistent with my own analysis of ACTA, it has been my contention for a long time that ACTA suffered from too much compromise during the negotiation stage, so the final treaty does not really change any existing substantive law. We are then presented with an unbelievably expensive treaty that does absolutely nothing.  This really is the main reason why ACTA is failing. If ACTA is so needed by the copyright industry, then why will it not change any laws?

You can download the full report here.

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