“Give to us clear vision that we may know where to stand and what to stand for—because unless we stand for something, we shall fall for anything. ” —Peter Marshall.
This week marks the start in Wellington New Zealand of the next round of ACTA negotiations, nominally the US-led Anti-Counterfeiting Trade Agreement. The scope of the agreement, however, has extended well beyond trade in fake medicines and knock-off Gucci handbags into the technical realms of file-sharing, ISP liability, disconnection, and DRM. Such issues have been contentious where they’ve arisen in New Zealand, France, the UK, USA, and elsewhere, yet negotiators seem ignorant of consumer and technology concerns. To correct this, the open PublicACTA conference two days ago drafted and released the Wellington Declaration.
The Wellington Declaration states principles and positions that attendees felt the negotiators should take into account. Participants repeatedly said the matters at the heart of ACTA’s original scope were important for the negotiators to tackle because of the public health and safety implications of fake medicines. The audience, however, did not support the trade agreement’s incursion into general IP law and the effective rebalancing of copyright law that the leaked drafts show is on the table.
Significant changes to copyright law reflect complex issues with strong public opinion on both sides, and public consultation is essential to make satisfactory law. This was shown last year after New Zealand’s successful opposition to the imposition of three-strikes disconnection law caused the Government to work more closely with those who would be affected, resulting in a significantly better bill to be put before Parliament next month. The ACTA participants are negotiating in secret and countries will sign the agreement before revealing the text, a process that is almost guaranteed to provide bad law.
The drafters of the Wellington Declaration were insistent that the Internet is not a vehicle for economic destruction to be contained and thwarted by the ACTA. Instead, they were aware of its ability to create wealth, connect people, share knowledge, and raise the social, economic, and cultural conditions of people around the world. They were clear that these benefits of the Internet are imperiled by the rush to introduce “secondary liability” (make ISPs, search engines, and web sites responsible for the things they carry or serve for others), “TPMs” (technical protection measures, another name for DRM), and “statutory damages” (damages calculations enshrined in law, rather than being left to the judge and the damage caused by the particular act), and disconnection (or other approaches, such as slowdowns).
As notable as the text of the Declaration is the manner in which it was created. Over a hundred people including leading law professors, IP lawyers, privacy experts, entrepreneurs, and technologists heard from two who have immersed themselves in the leaked ACTA drafts, Michael Geist and Kim Weatherall. Then we heard from some people active in New Zealand technology law, before identifying the issues the declaration would address. We broke into groups, developed draft text, and then wordsmithed as a group to produce the final text. Anyone was welcome to attend and participate, the proceedings were streamed and watched by hundreds internationally, and we operated by consensus so the final draft was agreed by all. Video from the event is archived online. We, the PublicACTA organisers and participants, hope we’ve begun something that will be continued in other countries in future rounds, and which results in a narrower, better trade agreement that focuses on public good.
The text of the Declaration will be delivered to the negotiators in less than twenty-four hours, but will of course remain online. You can sign the Wellington Declaration and lend your weight to this clear vision so ACTA negotiators know what to stand for.