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Today on Radio New Zealand National I talked about a treaty called ACTA about which its hard to find any information. ACTA is being negotiated now by countries including New Zealand, and it has the potential to curb people’s privacy and their rights to use the Internet. MED has issued a call for submissions on what New Zealand’s negotiating position should be, although it has delayed answering an OIA request for more information until after the deadline of next Monday.

Does this affect you? Quite possibly it will if some well-funded lobbyists get their way. It’s clear that some want this treaty to impose DMCA-style laws across the world. This would effectively stop innovation in its tracks except when it was done by big companies. And the last New Zealand copyright law change pandered to the interests of the big players at the expense of the rest of us. (Read to the bottom of the linked page.)

Read on for my speaking notes, and for the address to send you emailed submission to. Or, listen to the podcast.

Q: OK, now what’s this about a secret treaty?

A: There’s a thing called the Anti-Counterfeiting Trade Agreement, or ACTA to its friends.

Q: And does it have any friends?

A: Yes, there’s a group of countries involved in some kind of negotiation. That group includes the US, Australia, Canada, the EU and Japan – and us, of course. And there’s a not a lot known about it at the moment outside the officials who are doing the negotiating. There’s a couple of pages about it on the MED site.

Q: So it’s hardly secret

A: You could say that – but the MED website’s own search tool doesn’t find them! And the site uses strange and unreadable URLs so I can’t read them out to you. I’ve linked up the MED page on the subject today.

Q: What’s the point of this treaty?

A: It’s not a treaty yet, of course, although the people pushing it obviously want it to be become one. Its ostensible aims are to stop the trade in counterfeit goods – fake Gucci handbags and so forth – by intercepting them at the border.

Q: So Customs will go through my luggage when I come back from a trip to Asia?

A: They can do that anyway – if they don’t, it’s because you look so honest, Kathryn. Anyway, there’s a proposal for a treaty which has been provided to large Hollywood-style companies but not to the general public or to civil society organizations. That’s why I say it’s secret. I’d encourage everyone who is remotely interested to go and download a copy – it’s in the links.

Q: What does it say?

A: It talks in high-minded generalities about suppressing trade in counterfeit goods. It also talks about the Internet. It’s clear that some people want Internet Service Providers held liable if their customers download copyrighted material.

Q: Is that so bad?

A: I couldn’t care less about fake Gucci handbags – mine’s real by the way, darling – but the stuff about the Internet is very scary – not just for people who download copyrighted material, but for everyone. So, imagine ISPs are made liable for the infringements of their customers – they go to the expense and trouble – which we will pay for, by the way – of installing equipment to try to figure out if what you are downloading is copyrighted. They aren’t always going to know so they will have to be conservative to avoid being sued, and that’s going to suppress a lot of sound and video files, and software, some perfectly legitimate to copy, flowing across the Net. And it will break the engine of innovation that the Internet represents, because it makes it harder for people with a new idea – like Youtube, for example, to just set it up because ISPs will just filter it out because it’s not worth the risk to them of being sued for vicarious copyright infringement.

And there’s a worse scenario. It can be made impossible for ISPs to know what you are downloading. In practice they can tell in many cases, but it’s quite possible to design services across the Internet that are completely encrypted so ISPs would have no idea what you are downloading. Skype is a classic example – it’s very well encrypted – that means wrapped up in codes so it can’t be read. Imagine now that all the downloading programs simply use some of the same technology – and some do already – that means that the ISPs can’t tell whether they are going to get sued or not. Their best course of action is to suppress encrypted communications altogether. And that would absolutely melt the Net down.

Q: This is part of an ongoing battle.

A: Yes. I don’t want to minimize the problem that new technologies are posing for copyright owners. A copyright, remember, is a form of monopoly granted to authors as a way of remunerating them for their efforts. If I hold a copyright in something, a book, say, or a song, then I get to say how it can be copied or published and under what terms. And the intention of copyright law is that I can attach a ‘for fee’ licensing condition and live comfortably into my old age off the royalties. In practice, copyright ownership is traded and many or most copyrights are in the hands of a few companies. But the principle is there.

Technology has changed all this, because copying used to hard work. New technologies, from the player piano onwards, have made it easy to copy. Computers and the Internet make it trivially easy to turn one of something into millions of copies around the world. That makes enforcing copyright a distinct challenge. And perhaps the whole system now needs a rethink. But, that’s not what’s happening here – instead, governments are being asked to pass laws that defy gravity.

Q: Like King Canute trying to hold back the tide?

A: Quite so. Except, in this case, Canute does have the power to stop the tide but its at the cost of crippling the Internet. Now there are some people, many of them in big media companies, who still think that would be a good idea, because it turns Joe and Jane Internet user from bloggers, publishers and maybe activists back into nice little couch potatoes that just consume whatever the companies quirt down the pipes to them – a bit like American cable TV, if you’ve every had that pleasure.

Q: And you see this treaty as going there?

A: Possibly. It’s hard to say at this stage because there’s so little known. MED has issued a public consultation calling for comment from New Zealanders on what our negotiating position should be. It’s important that they get some feedback their deadline, which is on Monday.

Q: What should people say?

A: People should write to the Minister and to MED – trademarks@med.govt.nz, it’s in the links, and say that they want fair use rights to copyrighted material, they don’t their privacy invaded, and that ISPs should not be made into spies.

Q: And you think that will make a difference?

A: I hope so, but I’d have to say there’s a distinct lack of trust here. When the last Copyright Bill went through – with all its faults – the Ministry and Minister made a great show of listening to people telling what the problems with it were, and the select committee went some way to insert language to balance it, for instance by making big media companies liable for vexatious claims of copyright infringement against little people. Then, at the last minute, the bill got made a lot stronger, all that balance was taken out, and it was pushed straight through the house, and the Minister had the gall to thank the record companies for all their help. She’s just taken away the rights of a large number of ordinary New Zealanders. Thanks a lot.

So, there’s not a lot of trust here as I say. This issue needs to become visible to a lot more people. It’s not just a few wild-eyed geeks and hippies whose rights can get trampled on – it’s all of us.

Links

A leaked copy of the ACTA treaty.

MED’s webpage about ACTA (which doesn’t show up on MED’s search engine).

What the music industry wants to see in the treaty, and commentary on that.

Send your submissions here by Monday 14th. Some ideas for a submission.