The Anti-Counterfeiting Trade Agreement (ACTA) is a multinational trade agreement which will set up an additional international legal framework for strengthening intellectual property rights protection. The ACTA treaty, through its statutes, aims to crack down on counterfeiting, generic medicines and, intellectual property rights infringement of contents on the internet.
The treaty has so far been signed by Australia, Canada, 22 member countries of European Union who later declined their consent, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, and the United States.
The ACTA treaty will come into force after ratification by 6 countries, in the countries where such ratification of the treaty has occurred.
ACTA – DIFFERENT PERSPECTIVES
Organizations around the world who have interests in intellectual property rights and trademarking consider the treaty to be the essential response to the increased infringement of intellectual property rights, counterfeit goods trade and piracy of copyright content.
Civil rights groups and other organizations that represent citizens and non-governmental interests, however, point out that the root of ACTA is corporate greed and the treaty as such can hinder freedom of expression and privacy of the citizenry.
Doctors Without Borders criticized the treaty as a potential threat to the availability of generic medicines to developing countries and thus making life-saving drugs expensive and inaccessible in these countries.
Civil rights groups across the world have called out the treaty and the nature of its formulation, whereby civil rights groups and the general public had been kept in the dark about the negotiation process, for policy laundering by organizations with vested interest in the matter.
ACTA AND ITS IMPACT ON NEW ZEALAND
The enforcement of the trade agreement in New Zealand could possibly control the counterfeiting of physical goods in the country more effectively. This would have a significant economic impact on New Zealand organizations that are potentially affected by counterfeiting operations.
The trade agreement can also potentially control illegal software piracy in the country, which will directly benefit New Zealand companies in the sector.
But the underlying question here is whether we should hold the good of few organizations to be more important than the good of many.
Impact on Democratic Process Due to Transparency
New Zealand has during the past formulated copyright laws to protect intellectual property through due democratic process with public participation and deliberation. The lack of transparency in formulating ACTA threatens to undermine the democratic process of the country that has put its own copyright laws into effect.
A treaty negotiated behind closed doors without due democratic process can adversely affect the best interests of the general public and organizations, as it may lead New Zealand to redraw the democratically formulated laws without public consultation, thereby significantly benefiting foreign interests.
Impact of a Balance Shift
The ACTA treaty if implemented in its current form will adversely impact the current balance and fairness of copyright laws formulated in New Zealand.
The current intellectual property protection laws in New Zealand balances the interests of the copyright holder and the user of the copyright. Such balance has been established to check the proliferation of monopolies and its adverse effects on the economy and public of the country. In its current form, ACTA shifts the balance in favor of the copyright holder, which means the public will end up having to spend more on those products or services.
Impact of Enforcement Fairness
ACTA also shifts the balance of enforcement of intellectual property right laws to ISPs and third parties. Current and proposed New Zealand copyright law stipulates that the ISPs and third parties are immune to liability claims if they are merely hosting copyrighted material and do not deliberately infringe copyright laws. With the shift as proposed by ACTA, the financial burden of safeguarding copyright would fall on the ISPs and third parties. This will have a grave economic impact on New Zealand companies.
Impact on Value Creation
The fast-paced innovations in technology sector require that in the modern world innovators need to sequentially build on innovations that have already been produced by other organizations or individuals.
Stringent measures as stipulated currently in ACTA can adversely affect this process and therefore affect the innovations that come out of New Zealand. Copyright laws are in place, not to facilitate monopolies but to facilitate incentive for innovation. But when it is used against the very purpose for which it is formulated, it just helps build monopolies. Behemoths in IT or pharma can use the provisions of the trade agreement to stifle competition and innovations coming out of New Zealand.
Impact of Protectionism
The ACTA treaty is in effect a protectionist measure to benefit the interests of a few companies while overlooking the interests of the general public of New Zealand. The significant question here is, whether we should be allowed to challenge the existing business models and protect the open standards of the internet which is vital as a space for innovation.
This has the potential to impact the future of the startup space in New Zealand while incumbent companies will further their economic stronghold over the common man.
Impact on Current Copyright Terms
ACTA could potentially make copyright duration longer in the country. This would mean that New Zealanders would eventually pay many more additional years of royalties, depending on the nature of the content in question.
Impact on Technological Protection Measure (TPM)
Current laws in New Zealand also allow one to circumvent TPM thus enabling one to watch legally purchased DVDs from other regions or even to unlock iPhones belonging to another region. There will be an effective stop to these practices with the enforcement of measures stipulated in ACTA, thus significantly impacting the general public.
FINAL IMPACT ANALYSIS
A trade agreement in all fairness should be economically beneficial for its member states and the general public who should ultimately be the beneficiaries of any such agreement. Such economic benefit for the country comes through tough negotiations with the interest of the public in mind and not a few organizations.
With ACTA, one can easily see that tough negotiations have not taken place to safeguard the best interests of the public and the interests of New Zealand’s economy, rather the enforcement of the terms of ACTA will eventually undermine the laws put in place through democratic participation.
And when democratic participation in lawmaking is undermined the losing side is almost always the general public and the economy of the state.
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