Final ACTA Treaty Released

The final draft of ACTA (subject to final legal review*) has been released, and it appears much watered down from previous versions.

You can view it here. It's not a hard read - only 24 pages.

No doubt many of those totally opposed to ACTA will still rail against it. That can hardly be a surprise, given the veil of secrecy covering many of the negotiations. The entire process to get to this point has been difficult and filled with controversy.

I haven't followed the minutiae of the ACTA negotiations and the various changes to the treaty language along the way, but from a quick read of the final draft it doesn't look like our government will need to implement huge changes to our IP or customs laws to comply with the treaty. I'm not sure whether our current copyright provisions regarding technological protection measures are consistent with the treaty, but the treaty is filled with exceptions and I've only taken the briefest look. Someone with more of an interest in the issue than me will no doubt examine to what extent our laws are consistent with the treaty.

Some rightsholders may be concerned that some of the key provisions they pushed for have been watered down.

And there will be those who just want to put the damn thing in a shredder or burn it, regardless of what it says. The term "ACTA" inspires a lot of venom in some people.

* I'm not sure if this legal review will be a "one last final check in case we missed anything obvious" review or more of a detailed legal review. I assume the former, otherwise they wouldn't be calling it a final draft. The lawyers will/should have been heavily engaged in the drafting from the beginning.

Another ACTA Leak

Last week Government officials were assuring us that there was no reason to worry about the ACTA negotiations to be conducted in Wellington next week, and that if a treaty was signed it would not lead to major changes in our copyright enforcement laws.

Now the Montreal Gazette reports on further leaked draft ACTA documents that seem to suggest state agencies will have wide-ranging powers.

The draft text provides for enhanced search powers that will allow border security to comb through the PCs and iPods of travellers. And products that could be used to circumvent the digital locks on media will be prohibited.

Also, people who illegally download material over the internet could be disconnected for up to 12 months. That's different to the six-month maximum proposed under the current bill before Parliament.

What stinks about this is not so much the proposed measures themselves, but the secrecy behind the negotiations. Copyright is an area that divides many people, and if we are to sign up to a treaty that will change the way we enforce copyright laws we should have a thorough public debate about the issues first. Once the draft text has been agreed it will be very difficult for our Government to back out.

So why the secrecy?

ACTA - It's Still A Secret But You Can Tell Us What You Think Of It - Updated

Now Updated With New ACTA Leaks!

You're not allowed to know what the content of ACTA is, or which country has proposed what, but at least you can now make submissions on it.

Doesn't that make you feel all warm inside?

But seriously, why are we bothering with the new three-strikes bill for copyright infringements while submissions on ACTA are being sought? Especially when much of the content MED wants submissions on is the subject of the bill and will be thrashed out during the select committee process.  This makes no sense to me. Am I missing something?

The MED also wants to hear views on technological protection measures (TPMs) and rights management information (RMIs).

You have until the end of the month. Get moving!

Update: Michael Geist reports on a leaked EU document on ACTA. I haven't had time to digest it in detail, but it appears a number of countries, including New Zealand, have a problem with the hardline approach taken by the US on infirngement and, in particular, TPMs and RMIs. 

Now we know that New Zealand and other countries have been debating what ACTA will cover, it is timely to ask exactly what the MED's submission process will achieve. If we have already told other countries what we will accept, what purpose will these submissions serve?

New File Sharing Bill, Confidentiality and ACTA

The Copyright (Infringing File Sharing) Amendment Bill was introduced into Parliament on Tuesday.

You can read the text of the bill here (though a warning: you'll probably get lost amidst the procedural morass that is sections 122C to 122I).

The bill introduces a three-notice system to deal with illegal file sharing. I posted on this previously when the Cabinet paper the bill is based on was released. The bill largely reflects the content of that Cabinet paper, but with a few changes and with some more detail in a couple of areas. It doesn't deal with some of the important issues ISPs and rights owners will want answered, such as how much ISPs will be entitled to charge rights owners, and what the infringement penalties will be.

The bill includes detailed provisions about how infringement proceedings will be held.  In effectively banning lawyers from Copyright Tribunal proceedings the legislators are clearly trying to accommodate those who raised concerns about the ability of alleged infringers to defend themselves.

The law is due to come into force on 1 October, but must first pass through the select committee process. I expect some of the procedural details will be further refined once all the various interest groups have had a say.

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I was trawling through Te Webz looking for articles about royalty reporting (I do a lot of IP licensing work), when I stumbled across this delightful article by Frank Quirk of the band Too Much Joy (no, I’d never heard of them either). It raises some interesting questions about how the major labels treat their talent.

I don't do too much work with music copyright (because, sadly, most NZ musicians are too poor to afford lawyers), so it was certainly interesting to read one man's experiences of the royalty accounting methods of a big label. I wonder if this is how musicians in NZ get treated.

So, while I can play more than three chords on the guitar, I think I'll stick to my day job.

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On IP Watchdog, Gene Quinn examines why many companies simply refuse to evaluate inventions submitted to them, other than on a non-confidential basis.

In my experience this applies generally to large companies that have significant ongoing R&D programmes. Few NZ corporates would flatly refuse to sign a confidentiality agreement, because we simply don't have that many large innovative corporates doing significant volumes of R&D.

The trouble with accepting any idea that comes through you door is that, if you're already developing something similar and you sign a confidentiality agreement, you may find it hard to then exploit the invention you independently developed. Because it may look to some as if you simply pinched the idea off the person who came knocking at your door.

When I act for an inventor who is about to talk to someone about their invention I always advise them to get a confidentiality agreement signed, unless their patent application has already been published. But the reality is that some people just won't sign confidentiality agreements.

So if your invention is protectable your best option is to at least file a provisional patent application before disclosing the invention. It's not always ideal, especially if your idea is at an early stage and if you want to refine your invention further before filing a complete specification 12 months later - but it's often a better option than not talking to someone who may potentially be your best prospect for a deal.

Here is another trap. If you have something patentable but haven't got a patent application in, and if you then talk to someone about licensing or selling your invention, you may lose the ability to patent your invention altogether. That applies even if you are talking under the terms of a confidentiality agreement.

If your invention is valuable, it is always best to talk to an IP professional before disclosing details of it to anyone.

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ACTA negotiations continue to bubble away, though nobody other than a select few officials appears to know what is going on.

But leaked documents have revealed that Round 8 of the ACTA negotiations is to be held in Wellington, between 12-16 April.

If you're in the capital at that time, look out for a lot of American gentlemen wearing power suits and dark shades.