The Federal government has released the latest draft of the Anti-Counterfeiting Trade Agreement (ACTA) following the conclusion of the final round of discussions on the controversial intellectual property protection initiative at the weekend.
The ACTA draft, available online, includes a number of nuances to the protection of intellectual property in the online environment.
Under the current draft, – the last was released in April – each party to the ACTA must provide “adequate legal protection and effective legal remedies” against the circumvention of technological measures designed to protect the rights of authors, performers or producers of digital recordings, or phonograms.
As a result of this, and assuming the ACTA requirements were passed into Australian law, it would be illegal to market to the public a “device or product, including computer programs, or a service, as a means of circumventing an effective technological measure” – such as digital rights management (DRM).
It would also be illegal to manufacture, import, or distribute such a product or device.
It would also be illegal to remove or alter any electronic rights management information, and/or to distribute, import for distribution, broadcast, communicate, or make available to the public copies of works, performances, or phonograms, knowing that electronic rights management information has been removed or altered without authority.
The ACTA also requires that each party’s enforcement procedures shall apply to infringement of at “least trademark and copyright or related rights over digital networks, including the unlawful use of means of widespread distribution for infringing purposes.”
The latest ACTA draft also arguably takes a more conciliatory tone with internet service providers, noting that it seeks to “promote cooperation between service providers and rights holders” and balance the “rights and interests of the relevant right holders, service providers and users.”
In detailing the general obligations with respect to enforcement, the ACTA states that procedures adopted, maintained, or applied to implement enforcement of the ACTA be “fair, equitable, and provide for the rights of all participants subject to procedures to be appropriately protected.”
“In implementing this Chapter, each Party shall take into account the need for proportionality between the seriousness of the infringement, the interests of third parties, and the applicable measures, remedies and penalties,” the agreement reads.
Under the ACTA, criminal enforcement – criminal procedures and penalties – would be applied at “least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale.”
According to Department of Foreign Affairs and Trade (DFAT), Australia had not participated in the ACTA negotiations in order to drive change in Australian domestic laws.
“Australia seeks an enhanced, practical international standard on IPR [Intellectual Property Rights] enforcement with broad international support, to complement the existing international IP architecture,” a statement from the DFAT reads.
“Australia regards the extent to which the ACTA can attract support from countries in our region as one important issue in determining the value of the ACTA for Australia.”
According to DFAT, participation in the ACTA negotiations also did not oblige Australia to join a resulting treaty, with a decision on signing any final new ACTA treaty only taken after “full public and parliamentary scrutiny.”
Despite this, Article 1.2.1 of the ACTA draft notes “Each Party shall give effect to the provisions of this Agreement.”
“A Party may implement in its domestic law more extensive enforcement of intellectual property rights than is required by this Agreement, provided that such enforcement does not contravene the provisions of this Agreement,” the agreement reads.
“Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.”