ACTA will diminish Australia's digital economy: legal expert

The Anti-Counterfeiting Trade Agreement (ACTA), if adopted by Australia, could have major effect on innovation, the digital economy and competition with the country, according to an Australian legal expert.

Australian National University (ANU) College of Law associate professor, Dr Matthew Rimmer, told Computerworld Australia that ACTA, which is currently being considered by the Joint Standing Committee on Treaties in the Australia parliament, could have major ramifications for the digital environment.

“I think the anti-counterfeiting trade agreement (ACTA) will have a range of impacts upon innovation, the digital economy and competition,” Rimmer told Computerworld Australia.

“In relation to trademark law, there’s been a lot of controversy over the liability of online intermediaries for counterfeiting. The online marketplace eBay were sued unsuccessfully by Tiffany’s in the US and were also targeted with somewhat more effect by LVMH and Loreal in the European Union. So there’s a lot of debate about the clauses dealing with the digital environment in the ACTA.”

Overnight the European parliament rejected passing the ACTA straight to the European Court of Justice (ECJ) and will vote on the treaty before it is analysed by the ECJ.

According to Rimmer, ACTA criminalises breaches in copyright and trademark laws and shifts the focus from private owners enforcing infringements to enforcement being carried out by police, customs, border officials and intermediaries. However, he says this poses concerns about the impact of ACTA on human rights and internet freedom.

“Amnesty International has suggested that the treaty can really raise a Pandora’s box of possible human rights violations. There’s particular concern in relation to consumer rights because the treaty is quite tilted towards the interests of intellectual property owners,” Rimmer said.

“So I think it ties into debates about, for instance, fair use and fair dealing about time shifting and space shifting, about orphan works ... [and] whether or not there should be any special exceptions in relation to orphan works.”

ACTA also poses privacy concerns, Rimmer said, particularly for Australia, which does not have the defined privacy protection countries such as the European Union and United States have.

“There could be concerns about the surveillance of users and consumers using search engines or social networks. There could be concerns about the privacy of travellers being violated in terms of searches and I guess there’s also concern about material being intercepted by customs and border officials,” he said. Bloggers could also possibly be affected by ACTA.

Rimmer said the lack of economic analysis of the treaty is also questionable, with Australia’s Department of Foreign Affairs and Trade failing to carry out independent research around the cost benefits of the treaty to Australia.

“It’s quite strange that this treaty has been fast-tracked at the same time the government has initiated its own domestic law reform process with the Australian Law Reform Commission enquiry into copyright exceptions,” he said.

“So there are questions about whether or not the international treaty-making process is running roughshot over domestic litigation and domestic law reform processes.”

ACTA has been developed in closed environment, which has prompted controversy surrounding its transparency. The full finalised treaty has since been published for public viewing. Rimmer said another treaty – the Transpacific Partnership Agreement – also covers intellectual property and included more open dialogue in its development.

“It’s not as is it deals with nuclear secrets or matters of safety and security. There’s no reason why there shouldn’t be an open and transparent process in which treaties on intellectual property enforcement are developed and then debated. Such treaties shouldn’t be passed by stealth,” he said.

Rimmer would like to see exceptions included in the treaty and for questions around human rights to be considered. He also has concerns over enforcing the act and the fact that it can be changed and revised quickly.

“I was asked a good question from Scott Ludlum from the Greens who said ‘who is best to take into account these questions of intellectual property enforcement?’ My response was I think it’s much better to work through multi-lateral forums,” he said.

Follow Stephanie McDonald on Twitter: @steph_idg

Follow Computerworld Australia on Twitter: @ComputerworldAU

Copyright © 2012 IDG Communications, Inc.

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