Author: John Hilvert
Mar 23, 2012
Power to rights holders is a reason not to ratify agreement, say critics.
Academics have savaged the Anti-Counterfeiting Trade Agreement (ACTA) treaty over the power it affords intellectual property rights holders during a second round of joint committee hearings in Canberra.
Associate Professor Kimberlee Weatherall said the treaty – if ratified by Australia – would extend new powers to rights holders, despite assurances given by the Department of Foreign Affairs and Trade (DFAT) and representatives of the Attorney-General’s office.
While she accepted that ACTA’s ratification would not involve new legislation, Weatherall said the treaty expanded the reach of existing laws that governed commercial-scale infringements.
Laws relating to these types of infringements are currently dealt with by individual countries per directions in the existing World Trade Organisation agreement on Trade-Related Aspects of Intellectual Property (TRIPS).
Weatherall called for ratification of the ACTA to be delayed or canned altogether on grounds including that the agreement’s provisions aren’t accepted as a legitimate basis for international intellectual property standards and that there are few benefits and many costs for Australians in the treaty.
She also argued the treaty was tainted by narrow consultations, redundant in the face of existing multilateral forums, and did not counter-balance powers given to rights holders with user rights of access.
In addition, Weatherall said that ratification could undermine regional relations with major trade partners that had expressed concerns over the treaty, such as China and India.
Weatherall received some support from fellow academic Dr Hazel Moir, who attacked the Government and DFAT for failing to outline the "net benefit" of ratifying the treaty.
Moir said the main beneficiaries of ACTA were overseas firms and that there was a general lack of research to support ratification of the treaty.
Moir also attacked the validity of research before the committee by rights holders that detailed lost business and the price of infringement on the music industry.
Meanwhile, Australian National University College of Law associate professor Dr Matthew Rimmer attacked a DFAT National Interest analysis [pdf] as inadequate and unsatisfactory.
He said DFAT failed to explain how mandatory and discretionary obligations imposed by the treaty would be implemented in practice.
Rimmer also sought explanation of the so-called ACTA Committee’s ability to change rules and standards, arguing its existence could subvert international standards and enact tougher enforcement regimes with little external scrutiny, causing fragmentation to intellectual property laws.