No value for Australia in ACTA’s final text

The finalised version of the Anti-Counterfeiting Trade Agreement (ACTA) was released today. Australia participated in the negotiation of ACTA, which is an international agreement that is the frontline of the United States’ copyright industry’s battle for draconian increases in copyright enforcement to address what it sees as the challenges of the internet.

For Australia, the requirements of ACTA are not bad. However, this should not be taken as inferring that ACTA is in fact, good. More accurately, ACTA is ‘not as bad as it could have been’, because its more controversial requirements have been removed or amended following international and domestic pressure.

Procedurally, the confidential negotiation of ACTA was severely flawed. The early stages excluded civil society, while leaks raised genuine concerns because they revealed ACTA was very broad in scope and instead of targeting its namesake of ‘counterfeiting’ – being the infringement of trade marks via physical goods – its most substantial and controversial articles concerned copyright and the internet.

Australia may not have to make any immediate changes to its law under ACTA. However, this is because ACTA’s remaining controversial obligations have already been forced on to Australia under our free trade agreement with the United States, which required substantial changes to our domestic copyright regime that resulted in significant distortion.

Two key challenges remain for Australia. First, even obligations of ACTA that do not require changes to Australia’s laws may still limit our flexibility to implement positive changes and correct some areas of bad policy. Second, the hidden danger of ACTA is its elevation of the status of rights holders and the ammunition it gives their lobbyists to demand domestic legislative reform or the devotion of more public resources to policing private rights.

Copyright law must balance the interests of authors to receive incentives for creativity on the one hand, and the wider public interest in the advancement of learning, innovation, research and knowledge on the other, to ensure that maximum knowledge is created while providing maximum access to that knowledge.

Recent changes to our copyright law have increased protection but have failed to include sufficient parallel measures to ensure reasonable access to works.

There has been too much emphasis on enforcement and not enough on whether copyright is serving Australia’s interests in promoting creativity and innovation. Australia needs the pressing areas of imbalance in its copyright regime to be fixed, such as the lack of a transformative use exception that would allow remixes and mashups or limitations to liability for content hosts like YouTube, not increased enforcement from agreements like ACTA.

The Australian Digital Alliance is a non-profit cross-sectoral coalition founded to represent the public interest perspective in the copyright debate and to advocate for balanced copyright law. Members include universities, schools, individuals, IT companies, galleries, libraries, archives and museums.