Speaker by Various Artists


ACTA: Don't sell us down the river

by Colin J

It's tempting to see the confrontation between the entertainment industry and the Internet as some kind of moral issue; a clash of the heavyweights with only one possible outcome: a triumph of good over evil. In the red corner we have the people who bring us recorded music and Hollywood films, who have spent the last decade trying everything short of physical violence to stop people from getting access to their products for free. And, ladies and gentlemen, in the blue corner we have the plucky little Internet, which has grown up overnight into a 200kg gorilla, empowering right-thinking people around the world and making despotic regimes tremble.

Would that it were that straightforward because then we could settle the whole struggle with a political process assisted in the usual way by name-calling in the media. Dear Mr Prime Minister: Do you want an educated population or an entertained one? An efficient business sector or one that still sends paper letters? The opportunity to buy air tickets online in seconds or jobs for travel agents on every city block? A vibrant New Zealand cultural sector or an endless diet of overseas re-runs?

In fact, the situation is even simpler than that. There is now no cost to distributing information. That's not rhetoric - it's an indisputable fact. It means that people who rely for their income on being a toll-gate on the flow of information don't have a business model any more. Artists can still create and charge people for appreciating their work directly, but those who make their living from recycling imperfect copies of what others do are going to find it more and more difficult from now on.

This is the context for the innocuously-named Anti-Counterfeiting Trade Agreement (ACTA to its friends), an international treaty being negotiated by the governments of New Zealand, the EU, Canada, the US and a few other countries. Rumours have persisted for some time that this treaty is really about controlling copying on the Internet, as well as, or perhaps instead of, controlling the flood of fake Prada handbags and Rolex watches filling our shops. And rumours are what we have to rely on because no-one has seen the text of ACTA. The government officials negotiating it have told us that it's far too commercially sensitive for the people it would affect to be able to actually see it before it's all signed off by Obama, Gordon Brown or his successor and John Key.

It's not strictly true to say that no-one has seen the ACTA drafts, of course. The officials negotiating it obviously have, although they aren't talking about it. But, despite the potential effects on everyone who uses the Internet, the text of the treaty has been kept very quiet. During the US election campaign last year, Obama said that he would make the draft treaty open and stop treating it as a matter of national security. That hasn’t happened, but in a breakthrough of transparency the text of ACTA has now been shown to selected lobbyists.

We don't have to think too hard to figure out which side of this debate will be employing lobbyists. The people who stand to lose from an attack on the Internet to prevent people copying things are ordinary folks, run of the mill Internet users, not just those who like to download copyrighted music and movies. The people want that attack on the Internet, because it is destroying their business models, are a handful of very well-resourced industry associations and big companies. The same people who claimed that the very existence of recorded music would cause human vocal chords to atrophy, or that the popularity of the VCR (remember those?) would be "as dangerous as the Boston Strangler was to a woman at home".

The only person not an advocate for the recorded entertainment industry who claims to have seen a copy of ACTA is Canadian law professor Michael Geist. He says that ACTA is quite as bad as the rumours claim; that it contains a requirement for countries to implement law to force ISPs to cut off people's Internet connection if they are *accused* of copyright violation, to make it a criminal offence to break the digital rights management software that prevents blind people from accessing electronic books, and to enact the anti-competitive provisions of the US Digital Millennium Copyright Act which are used for such things as preventing third parties from refilling printer cartridges. It’s no accident that pharmaceuticals are more expensive in the US than almost anywhere else.

This would be very bad indeed for everyone who uses the Internet, except for a few large companies and industry organizations. Arbitrarily cutting off people’s Internet without due process would kill the innovation that it has allowed by making Internet providers liable for allowing anything those companies didn’t want on the Internet. It would make the Internet into more of a TV system, something that the entertainment industry is more used to.

We’ve already seen provisions like this in New Zealand law. John Key's government, on entering office, was persuaded by a public outcry not to implement Section 92A of the Copyright Act which would have subjected New Zealanders to the draconian (his word) provisions of cutting off people’s Internet connection on the basis of an unsubstantiated allegation. To Labour's shame, it had passed that law before the election with no public consultation, a fact that can't have been lost on observers as they watched front person Judith Tizard lose the Labour stronghold of Auckland Central. There's still a chance for S92A to come back; either through the Select Committee currently considering its replacement, or through some kind of enabling legislation to implement an international treaty. Yes, ACTA.

There is just starting to be a fuss world wide among the digerati about the potential for this secretly-negotiated international treaty to disenfranchise the great majority of Internet users from a say in how their medium is policed. In many countries people are worried that their leaders won't be able to resist an opportunity to look statesmanlike by signing an international treaty with that nice Mr Obama. Perhaps some countries will find it a condition of a free trade agreement with the US.

All this leads to a question about governments: just how do these decisions get made in the first place? There's no doubt that the music and film trade associations are a formidable lobbying force. How else can we imagine that politicians make decisions favouring the lobbyists at the expense of the rights of ordinary citizens?

If I come over as a little irritated about this, that's because I'm seethingly angry. Protecting the growing Internet from ignorant interventions used to be a matter of philosophy, of ideology if you like. I like to think that laws that affect New Zealanders are in made New Zealand and with due consultation with those affected. That was before I and others were sworn at by the responsible minister for suggesting that breaking the Internet without asking its users might not be a good idea. It was before I watched New Zealand go to the brink of being the first country to deprive someone of a basic human right because their flatmate or employee was accused of copying a song. It was before I watched the ACTA treaty being negotiated while being kept a secret from the people whom it affects.

I can’t accept how New Zealand politicians can let this just happen. How dare they take more notice of secret overseas treaty negotiations and industry lobbyists than they do of their constituents? The last government passed S92A and paid for it, although I doubt that was the only reason for its demise. The current government is still permitting its officials to take part in a secret process designed to curtail the rights of New Zealanders. How DARE they sell ordinary New Zealanders down the river?

I still believe - pity me if you like - that the vast majority of politicians are good people who go into Parliament and into government to make a difference, to do good things for their fellow human beings. I can only assume that something about the air-conditioning in the Beehive allows some of its inhabitants to get so far out of touch with the majority of people who put them there. That must be how we have MPs being, shall we say, less than grounded about how others might view their personal expense claims. And it can be the only explanation for those who show contempt for ordinary Internet users - most New Zealanders - by tolerating a process aimed at legislating away their rights.

After all, the alternative would be to assume that politicians were completely in the pocket of well-heeled lobbyists. And I don't believe that at all.

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