Australian MPs doubtful ACTA ratification is wise

New Zealand and Australia have signed, but not ratified, trade agreement

International support for the Anti-Counterfeiting Trade Agreement (ACTA) could be crumbling.

Following a decision by the European Parliament not to ratify ACTA a report by an all-party committee of Australia’s Parliament has been published; this advises against ratifying the treaty, at least until some vague terms have been clarified and ACTA’s potential impact on the economy better assessed.

Australia, like New Zealand, has signed but not ratified ACTA.

“It is prudent,” the Parliament’s Joint Standing Committee on Treaties recommends, “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 [Australian Law Reform Commission] 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,” its report says.

The committee has asked the government to commission “an independent and transparent assessment of the economic and social benefits and costs of the Anti-Counterfeiting Trade Agreement”.

It refers to a National Interest Analysis conducted by Australia’s government last year. This concluded that “ACTA offers an effective mechanism to internationalise existing Australian IP [intellectual property] standards of enforcement, providing Australian right holders and owners with the benefits of wider adoption overseas of the standards that are applied to IP enforcement in Australia.”

However, the treaty committee criticises “the paucity of evidence for the size of the [IP protection evasion] problem” and hence the advantage to Australia of ratifying ACTA. It also fingers a number of terms it says are inadequately defined in ACTA, including “intellectual property” itself. Submissions to the committee’s inquiry expressed a preference for the more tightly defined concepts of copyright and trade mark.

“Piracy”, a term often used for infractions of intellectual property law, particularly in the online realm, is also ill-defined, the committee says and “counterfeiting” itself is subject to an over-broad interpretation, which may catch, for example, generic versions of patented medicines.

The committee also questions – as have New Zealand lawyers - whether the enforcement of criminal penalties for copyright infringement is warranted.

The international agreement can only enter into force if ratified by six of the 11 signatories: the European Union , Australia, Canada, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, the US and Switzerland. Mexico has already rejected it, Europe has voted it down and now Australia appears hesitant.

“ACTA is not yet dead,” says Canadian lawyer and ardent ACTA monitor Michael Geist. “It may still eke out the necessary six ratifications in a year or two for it to take effect; but it is badly damaged and will seemingly never achieve the goals of its supporters as a model for other countries to adopt and to emerge as a new global standard for IP enforcement.”