The event was streamed and recorded and you can play or download the video at http://www.r2.co.nz/20100410/

The outcome of the meeting was the Wellington Declaration which you can sign up to if you agree with it at http://www.gopetition.com/online/35443.html. Russell Brown has a very nice summary of it over at Public Address.

More than 2000 have already signed, from around the world. The petition will remain open but PublicACTA will be delivering a physical copy to the negotiators tomorrow, so the more signatures the better.

Tell your friends

• Nat Torkington
• Michael Geist
• Jamie Love
• Cory Doctorow

One thing that stands out, as Nat notes, is that the reported New Zealand positions are much more realistic and reasonable than MED’s public utterances would have lead us to anticipate. That’s great, but we’re only one voice at a table we shouldn’t really be sitting around. And I say again, there is nothing in a confidentiality agreement that limits you exposing your own position to your own citizens. If you’ve got nothing to fear…

ACTA is coming!! That’s right, sportsfans! The circus called ACTA is coming to Wellington on 12-16 April this year. In the lead up to that, the Commerce Minister, Simon Power, is calling for submissions “to help set a higher benchmark for the enforcement of intellectual property rights”, so there’s obviously no prejudging going on there ¡  Make your submission by 31 March.

Also, this week, InternetNZ announced that they will be hosting a PublicACTA session on the 10th of April, as a counterpoint to the SecretACTA sessions the Government is hosting. I’ll be at that session and I encourage anyone with a Saturday to spare to be there two.

And lastly, this week, I gave a presentation on ACTA at Ignite!Wellington, focussing on the secrecy, as well as something we haven’t heard too much about – pharmaceuticals. It’s worth noting that at the USTR Special 301 meetings this week counterfeit drugs was very prominent in the committee’s questioning of NGOs.

Have a look at the Ignite! site, as there were some other good sessions (Mike Brown’s zen poem about cycling across America was my favourite) but I’ve embedded the video of my talk below as well, if you just want the ACTA bits. It’s a testing format – 5 minutes, 20 slides changing every 15 seconds – but I enjoyed it and learned heaps for the next one ;-)  Very hard to draw down hours of material into 5 minutes. Might help to think of it as a series of tweets…

There’s another interesting contrast: President Obama’s transparency memo – his first presidential act –  seems to have no impact on the United States Trade Representative, Ambassador Ron Kirk, who still insists that the ACTA negotiations are a matter of “national security”. It’s an interesting sidenote that almost all the other nations involved in ACTA swear they’ve all urged greater transparency in the negotiations, so one is left wondering which country is actually keeping it secret. Lookin’ at you, Barack!

What do we actually know about ACTA? Well, it’s named the Anti-Counterfeiting Trade Agreement, even though there appears to be nothing tradeable involved, and precious little about counterfeiting. It’s happening outside the bounds of the two international agencies specifically set up to do this sort of work – WIPO and the WTO. Why? Because the USTR couldn’t get it’s own way in those fora (having tried both – TRIPS did not deliver all the US wanted in the DMCA, and the WTO nations decided that they had more important things to worry about than the business models of US corporations) so it created a new one – a plurilateral, ‘voluntary’ arrangement where they could make up some rules and you’d have to agree if you want to play. The USTR has admitted that a lot of ACTA is based on the US-South Korea Free Trade Agreement, so anyone who wants an FTA with the US can excpect a requirement to join ACTA (“It’s not just us, you understand – it’s an *international* agreement” – yeah right).

But we are not allowed to see any details of the draft agreement or, if we are, we are not allowed to talk about it. Lawyers are, especially entertainment industry lawyers, but citizens (who are paying for it through taxes and who will be affected by it when it becomes law) are not. Even elected government representatives are not allowed to see the details that subordinate officials are negotiating – in Europe, America, the UK, questions have been asked at high levels, but no answers are forthcoming.

Pressure from individuals like Michael Geist, Jamie Love and myself through our respective freedom of information laws, from Organisations like the EFF, Creative Freedom Foundation, TechLiberty and acta.net.nz, from media commentators like Glyn Moody, Mike Masnick, Colin Jackson and many more, from actual politicians like Tom Watson(UK), Clare Curran(NZ), Jens Holm (Swe) and Senators Leahy, Spector, Sanders, Brown and Wyden(US) have forced some information into the public arena.

We know that:

There are 6 sections to the agreement:

1. Initial Provisions and Definitions;
2. Enforcement of Intellectual Property Rights;
3. International Cooperation;
4. Enforcement Practices;
5. Institutional Arrangements; and
6. Final Provisions.

The Enforcement of Intellectual Property Rights chapter has four sections:

• civil enforcement,
• border measures,
• criminal enforcement, and
• the Internet.

Other than that, we know very little. We get bland bullet point agenda and anodyne reports from the nations involved but nothing of substance, nothing that would reasssure us that the officials actually have our interests at heart, as well as the “copyright industry”.

What we do get are (very occasional) leaks – first, that list above released on Wikileaks, back in 2008 (which was probably the first time most people heard about ACTA), and more recently (via Wikileaks again) a memo from a European Commission bureaucrat commenting on some draft text proposed by the US. (Wikileaks is currently unable to be used as they are cramped for funds – please donate)

Let’s look at that memo. It’s worth quoting the summary in full:

A. GENERAL COMMENT

An overarching issue is the relationship between the US proposal and relevant EU legislation. These particular themes relating to the concepts involved the scope of the proposal and the identification of possible conflicts.

Scope of the proposal

The US proposal mainly deals with copyright, apart from a single reference to trademarks in paragraph 1. Relevant EU legislation is generally broader in scope and this issue will require further clarification from a policy perspective. This clarification concerns paragraphs 2 and 3 as paragraphs 4 to 7 are only applying to copyright.

Concept

The US proposal refers to the “Digital Environment”.

This seems to imply all digital technologies. Digital technologies are not only used in an online environment but also off-line, for example in CDs, DVDs and Blue Ray. However, this chapter has been nicknamed “the internet chapter”. Does is cover both online and offline?

The EU Acquis wording refers to “Information Society Service”.

This concept defined ISS as “services normally provided for remuneration, supplied at a distance, by electronic means and at the individual request of a recipient of services”.

Possible conflicts

1) The US proposal provides for both civil and criminal protection against copyright infringement.

This goes beyond the WIPO treaties and the EU Acquis (Directive 2001/29/EC) (CISD) which refers to “adequate legal protection” without specifying in what this protection would consist of (see 1st comment regarding paragraph 4). Furthermore, the e-Commerce Directive (2000/31/EC) (ECD) applies horizontally across all areas of law which touch upon the provision of information society services, regardless of whether it is a matter of public, private or criminal law. It is not clear how the US proposal interprets this, if at all. For example, paragraph 3.a. is limited to civil remedies only.

2) EU may wish to review the potential implications, if any, with the recently adopted Consumers Rights Directive, which is part of revised Regulatory Framework for Electronic Communications (Telecom Package).”

Right off the bat, we can see that there are inconsistencies between what the US wants and what the negotiators appear to have been talking about. The commentary points out the inconsistency with existing EU understanding, practice and law, and points to potential conflicts between ACTA, as proposed, and EU practice.

Sorry? They’ve been talking about this for 2 years and they still don’t understand what THEY mean by “digital environment”?? But we do get the point that “The US proposal mainly deals with copyright”. So why is this still the Anti-Counterfeit Trade Agreement?

I was going to go through the document point by point, but this entry is already long. It’s worth doing and I will soon, but right now I’d like to focus on a few things:

• The document is 7 pages long.
• It disects a proposal document that is probably longer, but is broken up into 7 sections.
• It comments on each section, in detail.

I don’t know how many bureaucrats are reading this but, let me tell you, my old grey ears were hearing alarms right at that point. If there’s disatisfaction with every section of a document, because of first principles, it’s time to send it back to be rethought. Instead, the EU commentary is attempting to wordsmith it into acceptability.

The sections (paragraphs in govtspeak) are:

• Paragraph 1:  General Obligations
• Paragraph 2:  third party liability for copyright infringements.
• Paragraph 3:  circumstances under which third party liability may be limited.
• Paragraph 4:  Technical Measures.
• Paragraph 5:  independent civil and criminal enforcement
• Paragraph 6:  Rights’ Management.
• Paragraph 7:  limitations of Right’s management

Without the text of the proposal, it’s difficult to really determine what the commentary is actually refering to but a few quotes stand out.

Re Para 1

However, unlike these latter provisions, the proposal does not state that the procedures etc. also shall be fair, equitable and/or proportionate in relation to, for example, an alleged infringer. Against this background, it appears like the proposed paragraph is not coherent with TRIPs and IPRED

Re Para 2

EU understands this paragraph and accompanying footnotes as providing for an international minimum harmonization regarding the issue of what is called in some Member States “contributory copyright infringement”. This concept does not exist in the current Acquis communautaire and in the law of several Member States

Re Para 3

The aim of paragraph 3(b) is to establish a system that can be considered to make the exemptions from liability subject to specific conditions: notice-and-take down procedure to address the unauthorized storage or transmission of materials protected by copyright or related rights. Such an obligation is currently not found in the ECD.

Re Para 4

It is not clear if the scope of the provision covers only phonogram author rights and neighbouring rights (performers, producers) or do the definition of ‚”author” also includes film, audio, literature.

Re Para 5

Footnote 8 seems to govern “interoperability” issues, i.e. the ability of consumers to play, for example, music which they have downloaded legally, on different players such as an iPhone or a Microsoft Media Player. The footnote seems to be intended to make sure that contracting Parties do not require that such interoperability must be achievable.

We’re talking about some new law here, to achieve this “harmonization’ ACTA seeks. Things that aren’t illegal now in most countries (including the US) will become illegal “in order to fit with our international obligations”.

The US tried this with TRIPS in order to fuel the DMCA through Congress in its original form and fell at that hurdle. The international community said ‘woah, nelly, this far and no further!” and some of the more draconian measures (like ‘graduated response’) had to be dropped. This is them trying it again.

We’re talking about major changes that will hobble innovation and tie us to decaying business models that actually only benefit a very few corporations. How do artists, musicians and authors get any benefit out of this, when they’re already struggling with their respective industries to make a buck? It’s not piracy that’s taking your money, people – it’s the contracts you signed with your publishers.

Although ACTA had its origins with Big Pharma and Big Agribusiness, the copyright industry has leapt on it holus-bolus. They’re the shock troops now, taking the heat, but my money is on the pharmaceutical and agribusiness lobbies still being heavily involved. While we are rightly concerned about what is in the “Internet chapter”, I really want to read the rest of it, where the rules against generic drugs and patent-free seeds will be. That has the capacity to be just as important and we should not lose sight of that in our desire to keep information free.

The process used to get to the end point is just as important in democracy as the result achieved, often moreso. An open, uncorrupt and objective process is the only way to gain any sort of result that benefits all parties. ACTA, so far as we can see, is only going to benefit the corporations, and that’s why, in my opinion, they’re keeping it hidden.

Secretary Clinton said:

“The final freedom, one that was probably inherent in what both President and Mrs. Roosevelt thought about and wrote about all those years ago, is one that flows from the four I’ve already mentioned: the freedom to connect — the idea that governments should not prevent people from connecting to the internet, to websites, or to each other. The freedom to connect is like the freedom of assembly, only in cyberspace. It allows individuals to get online, come together, and hopefully cooperate. Once you’re on the Internet, you don’t need to be a tycoon or a rock star to have a huge impact on society.”

What we need to see now is the implementation of those high ideals, not more restrictions. The reality has to match the rhetoric. It’s way past time to open the shutters on the ACTA process. To the participating governments, if you’ve got nothing to hide, why are you hiding something?

PS You can sign an international petition for more openness in the ACTA process at http://a2knetwork.org/joint-declaration-acta

So what happened to drag me away from the keyboard?

• I got a dog (using the same rule as cats – see other blog)
• I helped run a BarCamp on Open Government
• I did a couple of other projects that I can’t link to or talk too much about
• I had bronchitis (been a pretty crappy winter all around, health-wise)
• I was accepted as an exhibitor in the Kapiti Arts Trail this weekend (#91)
• (I’m sure there was some other stuff)
• Oh yeah, I signed up on Twitter.

That last is the big one, really, as it chews up the most time. I have barely looked at RSS since April, and have only made one post to my family blog. It’s really quite fascinating to me (10K tweets later) and not a little frightening. I’m following most of the people I used to use RSS for, but now it’s in real time.

So, what’s hauled me back to the keyboard? ACTA – the Anti-Counterfeiting Trade Agreement – you may remember that I’ve blogged on this before. Well, it’s just entered its next round, in Korea, that well-known home of freedom and civil liberties (and the first country in the world to pass a 3 strikes law and implement it).

So, wassup with ACTA? For background, I’d like to point you to a recording of me discussing ACTA with Kim Hill on National Radio recently. Very pleased with the event and it’s now very timely, as ACTA has reared up again.

Those playing at home will remember that I’ve discussed the “intellectual property” aspect of ACTA before, and the fact that it’s being negotiated so secretly, more secretly than any other “trade treaty”. Long time players will also note that, in my submission to MED in June last year, I said (in para 17):

Further, the scarce official information available about ACTA would appear to indicate that it was intended to harmonize the enforcement of existing IPRs. However, the only current approach to a harmonized global concept of IP is occurring through WIPO, and ACTA appears to seek to operate independently of WIPO. There seems to be a fatal disconnect here – how can you harmonize enforcement if you don’t first harmonize the definition of infringements?

So now they’re seriously talking about this area and how they want to do it.

Michael Geist has broken the story and Cory Doctorow has broached it to the BoingBoing community. Neither of them appear to have actual text, but quote sources who say the draft text is modelled on the US-South Korea free trade agreement.

Geist outlines five issues:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.
2. A requirement to establish third-party liability for copyright infringement.
3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs).  Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.
4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements.
5. Rights Management provisions, also modeled on U.S. free trade treaty language

Doctorow’s language is a little blunter – he notes that ISPs will have to proactively police copyright on user-contributed material, that ISPs will have to cut off Internet access of accused copyright infringers or face liability, that the whole world must adopt US style notice-and-takedown rules without evidence of infringing copyright, and that there will be mandatory prohibitions on breaking DRM.

We can’t confirm or deny what is in the actual draft because we don’t have a copy. The US administration wrote this chapter of the draft but is still regarding ACTA as a matter of national security. They recently let 42 individuals see a draft text, but only 4 were from what we regard as “civil society”. The rest were big corporates. This, the Obama Administration calls “transparency” and consultation. To be fair, Bush’s administration was worse, but this is not what we expect from a leader who campaigned on “change”, “hope” and “yes, we can”.

The New Zealand government is no better. Our officials say:

The countries participating in the development of ACTA have agreed that general information about ACTA’s objectives and the negotiating process should be made public. In that regard, MED has provided a range of relevant information about ACTA on its website. However, ACTA participants have also agreed that information relating to formal negotiating positions of governments should be protected, as is the standard practice in international treaty negotiations. It is in this context that we are unable to reiease many of the items you request.

First point – it is not the standard practice – the WTO Doha Round, the Free Trade Area of the Americas, World Health Organisation, WIPO – all publish the texts and proceedings as they go.

Secondly, the material published by all nations, including the Ministry of Economic Development is contextless spin, rather than substantive reporting of negotiations. “General information” is a kind way of putting it – “We’re doing something that will affect all of you but we’re not going to tell you until we’ve done it” is more accurate.

What is hardest to understand is how the governments involved – United States, Switzerland, Japan, Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates, Canada and the European Union – can justify this secrecy in the face of domestic freedom of information laws, pledges of transparency and even the concept of democracy – government of the people, for the people and by the people.

It’s going to get worse before it gets better, and individual protests are going to be little waves crashing against the rocks of government indifference.  The proponents of this type of action have money, power and the ears of their legislators – we have our spirits, our wills and our need to be free. To make sure that’s enough, we need to join together and use our collective voice. In New Zealand, I recommend the Creative Freedom Foundation, InternetNZ and the NZ Open Source Society, all of whom have expressed their concerns to government previously. Elsewhere the Electronic Frontier Foundation, Knowledge Ecology International, even your local Pirate Party and the like are carrying the flag.

The proponents of ACTA say it’s about protecting the property of the content creators, letting them earn a living, that opponents  want to steal the food from the mouths of artists and their children. They’ve persuaded (or coerced) some artists and writers to speak up in this matter, to plead their cause. But the real blocks to artists, writers and musicians earning their fair share of income are the publishers themselves, with iniquitous contracts, onerous debts and dubious expenses. All the publishers are trying to protect is a dying business model which even now is still earning them billions each year.

Copyright isn’t about property – it’s about knowledge. It’s a social contract between the creator and the receiver (I won’t say “consumer” because knowledge isn’t consumed; it’s shared) and protects both. Publishers have always owned the gate to knowledge. The Internet and digital technology changes that completely. We’re all publishers now.

In a knowledge economy, you’re not buying and selling knowledge, just as you’re not buying and selling cash in a cash economy. In a knowledge economy, knowledge is the currency used to obtain something from the receiver – attention, loyalty, or something else  - something of value to both parties. It’s a different market model from the industrial one we grew up with of few producers, scarce product and many consumers. Product is no longer scarce, nor can it be made artificially so. The old model is broken, yet the old guard is trying to hamstring the new for as long as possible.

Google ACTA, learn what it’s about and what it’s claimed to be about. Wake up your media who are strangely silent on this matter and make them report it, if only to report your protest. Contact your elected representatives and make them aware that you don’t want this, that you won’t stand for it and that you expect them to represent your will, not the will of Hollywood and the recording industry, the pharmaceutical industry and the big broadcasters, who all stand to make more money by locking in our choices in what we can do with information.

Don’t just sit there – DO something!

It’s highly resistant to OCR but Wikileaks is hosting a page where transcriptions are being lodged

I think it’s awfully interesting to note that all requests for information around the world have been met with “There isn’t a draft text yet, so we can’t release anything. As soon as we have something, we’ll show you.”

Yeah, right

Canada’s report on ACTA consultation notes was more interesting, frankly, and that was only a rerun of the stuff we’ve seen before from MED.

Glyn Moody had a good take, highlighting the paradox for the governments involved:

On the one hand, the negotiators have to pretend that “a comprehensive set of proposals for the text of the agreement does not yet exist”, so that we can’t find out the details; on the other, they want to finish off negotiations as quickly as possible, so as to prevent too many leaks. Of course, they can’t really have it both ways, which is leading to this rather grotesque dance of the seven veils, whereby bits and pieces are revealed in an attempt to keep us quiet in the meantime.

Michael Geist dissected what came out of Canada in a five-part post that gave more respect to the material than I thought was due.

Unless we see the full draft text, there really is nothing to report. Apparently, the parties are still hoping to meet in the next 8 weeks in Morocco, but we don’t appear to have a firm date yet.

Ho hum.

His column is published in the Toronto Star and the Ottowa Citizen, but that seems to be as close as the MSM is getting to ACTA. With the Russia Today video I wrote about the other day, even knee-jerk Rethuglicans are asking “Why isn’t the Mainstream Media all over this?”

It’s a really fair question, and one I’ve referred to before, but I’ve yet to see a coherent answer.

So I thought I’d ask:

letters@dompost.co.nz

Dear sir

The Government is negotiating an important intellectual property treaty, the Anti Counterfeiting Trade Agreement, and has been for 12 months, as reported on the Ministry of Economic Development’s page at http://www.med.govt.nz/templates/ContentTopicSummary____34357.aspx. Yet I see no reporting of this in your newspaper, or any of the NZ Fairfax stable. Newspapers in Australia and Canada have been reporting on this but our media have been silent.

May one ask why?

Regards

Mark Harris
Waikanae

I hold no huge hope of useful response, but you have to ask.

UPDATE: my name was included in the “points notes” sidebar. :-(

The wing nuts are raging that Obama is interfering in their lives! Let me quote to you from one of the slightly less foaming:

Yikes! Is there any part of American citizens’ lives that the Obama administration does not want to intrude on? Where is the MSM on this? Can you imagine the outcry if this was coming down the pike under Bush? There would have been weeping and gnashing of teeth! And cries of totalitarianism, which it seems, is coming for us under the cover of night…

The irony that this originated under George Bush seems to escape them.

But they’re right to ask where are the mainstream media? Why haven’t they been all over this for the last 18 months? As I said in a previous post some have, but nowhere near enough.

The irony also is that the wing nuts are getting their information from a Russian blog (and funded by the State, no less). And yet they’re posting with labels like “liberal bias”, “media bias”, and “totalitarianism”. Way to have a rational discussion, guys.

ACTA is hairy and scary, not least because of the secrecy. But Europe is calling for more transparency, as is Canada, and Obama’s White House is reviewing the USTR’s stance of “national security” as I type (well, maybe not as I type as it’s just coming up Sunday morning in Washington DC). What will it take to shift the MED? Probably dynamite.

As bad as s92A was, ACTA is a whole other ball of wax. The media need to be on top of it, but they really are conspicuous by their absence. I don’t want to seem like a conspiracy theorist, but are the big media combines suppressing any reporting of the negotiations? Are there instructions going out to remote bureaus to not cover the issue?

Bloggers are able to get information. You’d think the MSM with their vast resources should be able to get at least that much, if not more. Because the alternative to the paranoia is that the media are just too stupid to recognize a story if it bit them on the arse.

Trade agreements are often negotiated under cover of secrecy, so that industry lobbyists can’t focus on details that affect their constituents and derail the process. But, with ACTA, the industry lobbyists appear to be in on the game, privy to the details and offering advice to the negotiating teams. It’s only we poor, tax-paying, voting citizens that aren’t allowed to know anything.

The media isn’t helping. I don’t recall much media comment at all in New Zealand on ACTA, over the last year. A Google search outside official government sites says there are 5180 responses for ACTA, but the first 20 shows blogs (Br3nda Wallace, Colin Jackson, Geekzone and me), InternetNZ and the Distilled Spirits Association (both of whom put in submissions during last year’s “consultation” spurred by the Wikileaks release). The rest of the results are for other uses of the word “acta” (which is Latin for “beach” apparently, but also “register of events”), often for scientific journals. Searching on “Anti-Counterfeiting Trade Agreement” is a little better, but largely the same type of suspects. The mainstream media is conspicuous by it’s absence.

Computerworld has 13 articles, including the latest news that Obama’s administration appears no more transparent than Bush’s was. Stuff has 2, plus 1 more under “ACTA” from the Sydney Morning Herald. The NZ Herald has none. Zero. Not even a Reuters feed.

I want to take a moment to single out 2 reporters, Juha Saarinen and Stephen Bell, who have both educated themselves about this issue and both written about it. But they are generally regarded as tech reporters. Where are the mainstream reporters, the business analysts and economists? When will the NZ media wake up to the fact that this is not a tech issue? The level of omission looks deliberate.

It’s not much better overseas. Michael Geist’s legal column is serialized across a number of Canadian papers, so there’s some coverage there, but most of the message is carried on the blogs and lists, on the tech sites and the magazines like Computerworld (Glyn Moody in the UK has been active) and CNET. And it’s from CNET and Declan McCullagh that the current big story about ACTA comes (although, to be fair, it’s on blogs everywhere, and James Love has his post on the Huffington Post here) : Obama’s administration has invoked Executive Order 12958 to classify the ACTA documents as “classified in the interest of national security”.

What in [insert_deity]‘s name is in there??? How can a document about “harmonizing intellectual property enforcement” be a state secret that could damage national security??

Although, it’s not a secret to everyone. Love has a list of all the people who are allowed to see it. The Fertilizer Institute? Pfizer? Rubber Manufacturers Association??

If the governments negotiating this thing are trying to make people scared and rebellious, they’re doing a heckuva job. At times, I’ve thought that that’s exactly what they’re doing, so that they can bleed out all the “hysteria” (interesting how that term popped up in the s92A contretemps as well) and then say, “see? It’s not nearly as bad as you thought it was”, but I decided that none of the people I know are involved are actually that bright. I could be wrong on that, though. I’m starting to think it really is as bad as we think.

Love also has a list of other sites reporting the story, but there’s no MSM there, either.

[sigh]

“Meet the new boss, same as the old boss…”

I had hoped for better from Obama’s administration, at least in terms of their vaunted transparency policy, but it looks like ACTA is one thing that won’t go on the RSS feeds. Looks like Townsend had it right, at least in the verse. It’s we who need to learn the chorus.

France is also going through the process of such legislation in spite of the fact that the European Parliament has declared it not suitable to Europe. In Ireland, the IP industry has coerced the largest ISP and has sent demands to the smaller ISPs to put in place a graduated response mechanism without legislation. That’s their preferred tactic, I think.

Germany has recently knocked back such a proposal, but there appears to be a surge in United States and other countries for such processes to be put in place.

This has led some people to ask “is this just about the RIAA or are they just a useful stalking horse for wider goals of censorship and control?”.

In my view, that’s bordering on tinfoil hat territory. I’m not disputing there is a wider game being played globally by interested parties, and to some extent it’s about control. But I really don’t think censorship’s the driving force. However, I agree that the RIAA et al are front and centre, while machinations occur behind closed doors.
There is definitely a Charge of the IP Brigade to shut down what they see as infringements. What people forget is that the IP Brigade is not limited to the RIAA, the MPAA, or even our own RIANZ. I think that “graduated response” is an idea whose proponents feel its time has come (when all you’ve got’s a hammer…) but it’s only one aspect of the global pressure to secure “intellectual property rights” as physical assets.

We’re seeing a lot of action, globally, on this front, and have been for some time. There’s the SECURE working group, in the World Customs Organization, for one. Another example, although less well defined, is the ACTA — the Anti-Counterfeiting Trade Agreement. We don’t have a lot of details about ACTA. What we do know from leaked documents is that it’s as heavy on the IP side as it is on the counterfeiting — some might say more so.

The official line on ACTA is that it comes out of the United States and Japan because they feel that the WTO, and TRIPS especially, is not moving fast enough to protect their intellectual property industries. It actually goes a little deeper than that — with some major players who have kept well out of the spotlight.

In 2004, the first Global Congress on Combating Counterfeiting was held. Its major sponsor was the Global Business Leaders Alliance Against Counterfeiting (GBLAAC). Don’t go looking for them — they don’t exist any more. And their sponsorship was at one point removed from the official record of the Congress although it’s back now. The member organizations of the GBLAAC included Proctor & Gamble, Unilever, British American Tobacco, DaimlerChrysler, Philip Morris and Coca-Cola and speakers from those companies were on the agenda.

The other sponsors of the Congress appear to have been a global law firm called Baker McKenzie, and an IP and patents firm, Rouse and Co. International. Also participating were Interpol, the International Trademark Association (INTA), the International Security Management Association (ISMA), WIPO, and the World Customs Organisation.

The message was carried from the Global Congress to the 2005 G8 meeting and from there to WIPO but got no traction. They venue shifted to the WTO but likewise had no success. The banner was picked up again in 2007 by the USTR (United States trade Representative) who collaborated with Japan to present plurilateral negotiation process called ACTA, with invited participants including New Zealand.

The original sponsors are heavy hitters, and are used to playing a long game. These multinational companies with very deep pockets are the real drivers behind this wave of IP regulation. They stand to make or lose a lot of money. Tobacco and drugs (legal ones) are the focus of the counterfeiting side. Tobacco is regarded as counterfeit if it hasn’t got the appropriate government licence. The tobacco is as real, but it hasn’t been through the process.

The focus on the drug side is more about generics than fake drugs, although the safety aspect is what’s being pushed. And there’s enough truth in that to gain support.

An example of what’s at stake is that a counterfeit drug, in the US, is one that hasn’t been passed by the FDA, which can include foreign drugs and generics. You can buy it over-the-counter in Canada quite legally but if you are going on to the States, you should get rid of it as it will be regarded as counterfeit.

This part of the attack is aimed largely at India, a major source of generic drugs primarily because they can’t afford the “genuine article”. Another area that suffers is Africa, where HIV/AIDS and other killer diseases are rampant partly because they can’t afford the drugs to combat it. Generics could help them a lot but would reduce the profits of the companies, collectively known as Big Pharma.

In my opinion, the real source of this problem is the corrupt process that’s called the US Congress. In order to get elected, candidates except support from vested interests. Some of those interests drug companies, some Hollywood studios, some other music industry — all have IP they wish to jealously protect — and the legislators (some honestly) agitate to create and support legislation that their benefactors say they need to be competitive.

While a side-effect of all this protection may be a form of censorship and control, I don’t think that that is the main objective — follow the money.

“Graduated response” is only a weapon du jour. That’s why repealing s92A is only part of the solution. We need as a nation to examine what copyright means how cultural context, and how we relate to the rest of the world. We need a copyright regime that respects creators, consumers, and the businesses in between on a fair basis. And we need to examine just what copyright means from first principles.