Delay ratifying ACTA until 2013: committee

The Joint Standing Committee on Treaties has recommended against Australia ratifying the controversial Anti-Counterfeiting Trade Agreement (ACTA) until at least the end of 2013.

ACTA introduces a legal framework for 37 countries on copyright protection as a measure to curb both the flow of counterfeit goods around the globe and digital copyright infringement for music and films.

The agreement has drawn harsh criticisms from privacy and copyright activists since discussions began in 2008, because of what appeared to be hard-line tactics to crack down on piracy — for example, signing nations would be required to introduce a three-strikes law — and because of the discussions' clandestine nature. However, the finalised, less strict, agreement, completed in October 2010, was better received. The Australian Greens were wary of the agreement during its various draft rounds, but gave the final version a tentative tick of approval.

So far, 30 of the 37 countries have signed on to the agreement, including Australia, but no countries have yet ratified it. ACTA will come into force 30 days after the sixth party ratifies the agreement.

The issue has been controversial in Europe; earlier this month, the EU's trade committee recommended rejecting the ACTA treaty outright.

The Joint Standing Committee on Treaties, which has been investigating Australia's potential ratification of the treaty, today handed its report to parliament, and suggested delaying ratification until an independent analysis is undertaken to determine the economic impact of ACTA, and until the Australian Law Reform Commission (ALRC) completes its copyright review at the end of 2013.

"The committee considers that it would be wise to adopt a conservative approach to ratification of this treaty," Committee chair Kelvin Thomson said in the report. "If this is the future of copyright and IP [intellectual property] regulation, then potential parties to the treaty, like the EU, will, after consideration, ratify this treaty. However, copyright and IP holders in Australia will not be best served if the treaty is ratified by Australia and a handful of others, but is not compatible with the copyright and IP regimes applicable in major creative centres as the United States and Europe."

The committee said that there are serious concerns about the secrecy of the ACTA negotiations, and dismissed claims from the Department of Foreign Affairs and Trade (DFAT) that it is appropriate to keep the negotiations of a trade agreement secret, because it is actually an IP agreement.

"ACTA is not, in fact, a trade agreement; it is an IP agreement, and confidentiality is not common or appropriate in IP negotiations which impact directly and in minute detail on domestic law and domestic innovation policy."

The committee said that no assessment of the economic impact of the treaty was conducted in the National Interest Analysis of the treaty, and recommended that this first be conducted by the government, prior to the ratification of ACTA.

Although DFAT stressed that ACTA is already compliant with Australian law, the committee noted that no evidence has been presented to prove this. Even so, as the ALRC is investigating copyright law, it would be prudent to wait until this inquiry is resolved in November 2013 before moving to ratify ACTA.

"It is prudent, therefore, 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 has reported on its inquiry into copyright and the digital economy."

The committee said that this delay would allow Australia to adopt a wait-and-see approach, with other nations cooling on the idea of ratifying the ACTA treaty.

"Growing public awareness of ACTA amongst the nations involved in the negotiations has resulted in an increased level of disquiet about its potential impact. These public concerns have prompted a number of countries which were originally signatories to the agreement to indicate they will either postpone ratification or not ratify ACTA at all," the committee stated.

"Despite DFAT's optimistic outlook, there appears a very real possibility that ACTA will not be ratified by sufficient countries in order to come into existence."

Earlier this month, New York Law School professor Dan Hunter said that in adopting ACTA and the Trans-Pacific Partnership Agreement, Australia would limit the amount of reform that might eventuate from the copyright review.