'Three strikes' struck out of ACTA

Draft of secret trade negotiations to be made public this week

A “three-strikes” penalty regime leading to internet disconnection is not part of the ACTA agreement, a statement released at the end of the Wellington round of treaty negotiations says.

However, ACTA critic and law professor Michael Geist says there is still a possibility participants in the discussions will accept three strikes by default, as no alternative plan is offered.

The statement also tries to dismiss the threat that laptops and MP3 players could be examined at borders for copyright material. New Zealand’s negotiators have pointed out that NZ Customs already has the power to do this.

Following pressure for greater disclosure of the process of negotiating the Anti-Counterfeiting Trade Agreement (ACTA), parties have agreed to release a version of the current text this Thursday, New Zealand time.

However, doubts have already arisen over how much will be released and in what form, given that the release statement carries a rider emphasising “the importance of maintaining the confidentiality of [countries’] respective positions in trade negotiations.”

“Constructive and intensive discussions” in the Wellington ACTA round “provided a much improved understanding of respective national regimes [of intellectual property law and its enforcement] and how they worked in practice,” says the statement, issued late on Friday, the last day of the Wellington round.

“Based on this understanding, good progress was made toward narrowing existing differences in the areas of civil enforcement, border measures, criminal enforcement and special measures for the digital environment.”

The participants go on to say they made held "constructive discussions" on the scope of intellectual property rights covered in ACTA, suggesting less progress may have been made on that front. Some countries, according to leaked drafts, want the scope of ACTA enlarged to cover patent as well as copyright and trademark matters.

“Given this progress, it was felt that negotiations had advanced to a point where a draft text can be made available to the public,” the statement says. This, it suggests, will help reach a final agreement.

This is a striking turnaround from the position of absolute confidentiality in which the evolving text has been held until now. It is already being hailed as a victory for the New Zealand group that produced the Wellington Declaration at last week’s PublicACTA meeting, asking, among other things, for greater openness.

Comments appended to signatures on the Declaration show the secrecy of the negotiations as the matter causing most concern.

Some commentators point to the exemption of individual parties’ negotiating positions, which form a prominent part of texts leaked so far. Unless a lot of progress was made in Wellington they fear the text will be very much edited.

Others, however, see the release of the core text as a possible lever to persuade New Zealand’s negotiators to reveal something of the country’s stance on particular aspects of the agreement. Possibly, says one local observer, the contending positions will be released but without attribution to particular countries.

A source experienced in the negotiation of similar international agreements has told Computerworld that the latest purported draft to be leaked, from March, had so many square-bracketed alternative positions that on the surface it barely constitutes a coherent draft. But to gain a realistic impression of the nearness to agreement, you would have to sit in on the discussions.