Friday, 16 November 2007
Yesterday I noted that DFAT is asking for submissions on whether Australia should join negotiations on plurilateral anti-counterfeiting treaty (known at the moment as Anti-Counterfeiting Trade Agreement, although I’m not clear why – does putting ‘trade’ in it make it more attractive?).
I was talking to a couple of people yesterday about whether Australia should. Here are my initial thoughts, although they’re by no means fully formed:
- In general, it is not obvious that international standards need to be raised via any such Agreement. To the extent that it is thought that substantive rules in the area are required, I think it might be better to focus on achieving compliance with the TRIPS standards. To the extent that what is sought is better mechanisms for cooperation between countries, such issues are likely better handled via specialist bodies like the World Customs Organization. A proliferation of bodies and instruments is unlikely to be helpful for anyone.
- However, Australia should be involved in any negotiations (even if we do not end up signing it) – because she should have a say on any proposed international standards on anti-counterfeiting rules/IP standards
- It is important to ensure (a) that any standards negotiated preserve sovereign rights to manage domestic affairs and priorities; (b) exceptions and the right to use them are preserved, (c) that digital issues of downloading etc are kept out (the WIPO Copyright Treaty deals with these in more than sufficient detail).
Of course, the concern is that while the treaty will be ‘voluntary’ (as reported in IP Watch), it will be included in all the future US FTAs as something that FTA partners must sign up to (note to developing countries: perhaps be part of these negotiations to protect future interests?). It also isn’t necessarily the case that Australia, having already signed an FTA, is safe from such pressure. Remember that the Australia-US Free Trade Agreement requires yearly meetings, and that pressure may be brought to bear in any such meetings on Australia to sign up to any future IP multilateral or plurilateral agreements.
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2 Responses to “So, should Australian join in negotiations on ACTA?”
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November 16th, 2007 at 1:56 pm
Our friends over at The Economist might have a perspective that these folks should read titled, “The slow death of digital rights.”
According to their commentary, Microsoft and Sony – the originators of DRM – are moving away from the technology.
An increasing number of artists are choosing to avoid the restrictive contracts of the music industry and promote their music directly over the web.
Not to mention a little music industry twist:
As the brilliant minds at The Economist point out, abandoning DRM would force the industry to examine new business models… (insert exaggerated gasp here)
Paul
November 20th, 2007 at 7:12 pm
I have what may be a simplistic question: What does it matter to the residents of Australia if Australia participates in these discussions?
As I understand, it doesn’t matter if Australia is a signatory or contributor to any international agreements or treaties within the national borders.
This apparent conundrum is further deepened by states’ rights under the federated constitution.
Even a ratified treaty (- Does such a mechanism exist in Australia? -) does not carry the force of law within the borders of Australia. Therefore Australia can be a signatory to any number of civil and human rights statements from the UN, but still legally maintain detention centers.
In the US, a treaty that is ratified by both houses of the legislature carries the force of law – meaning it can be enforced by the police and courts. It is effectively a law passed by Congress.
The treaty is then signed into law by the President.
Is there some means by which international law or agreements can be effective law within the borders of Australia? My first guess is some sort of mechanism requiring the participation of the Governor General in involved (or possibly the treaty or agreement would have to be passed as a federal-level law?)