Yesterday the Australian Joint Standing Committee on Treaties (JSCOT) presented Parliament with a damning report into Australia’s negotiation of the Anti-Counterfeiting Trade Agreement (ACTA). The Committee, comprising members from both houses of Parliament, was unanimous in recommending against Australia’s ratification of ACTA (for now).

Adding to global criticisms levelled against ACTA, JSCOT condemns the ambiguity of its language, questions the proportionality of criminal offences for copyright infringement and demands that independent economic analysis of the anticipated costs and benefits to Australia be undertaken before they will consider the treaty again.

JSCOT’s report comes at a pivotal moment in an international push back against increased IP enforcement and protection standards negotiated through closed trade avenues.   The EU Parliament will vote on ACTA next week with five EU Parliamentary Committees having recommended against ratification of the treaty. In the same week, the thirteenth round of negotiations of the Trans-Pacific Partnership Agreement (TPP) kicks off in San Diego, with indications that its IP chapter contains ‘ACTA plus’ standards for enforcement and protection, and little mention of use of content in the public interest. Noticeably, on the same day JSCOT tabled their report in Parliament condemning ACTA, 132 US House Democrats (a majority) signed a letter to the US Trade Representative demanding increased transparency in TPP negotiations and Congressional access to TPP negotiating texts.

In their report, JSCOT makes nine recommendations to Parliament on the content, context and process of negotiating ACTA. Significantly, they advise delaying ratification altogether until the Australian Law Reform Commission reports on its Inquiry into Copyright & the Digital Economy – not due until November 2013. Perhaps anticipating a ‘no’ vote from the European Parliament next week on July 4th, come November 2013 JSCOT ponders whether ACTA will even still be on the table:

“Despite DFAT’s optimistic outlook, there appears a very real possibility that ACTA will not be ratified by sufficient countries in order to come into existence.”  (8.10)

The report takes up a number of the concerns raised by the Australian Digital Alliance and Australian Libraries Copyright Committee in our submission and testimony before the Committee. It’s critical of the lack of independent economic analysis and lack of evidence of IP enforcement issues reflected in the Government’s National Interest Analysis of ACTA. JSCOT highlights the lack of evidence behind the NIA’s claim that internationalisation of Australia’s domestic IP standards through ACTA would even benefit Australian IP holders, endorsing the argument put forward by the ADA and ALCC:

“Australia’s ability to make legislative changes based on recommendations by bodies like the Australian Law Reform Commission, with due consideration of the benefits and costs inherent in Australia’s existing IP regime, may be diminished by a negotiating stance that assumes existing IP standards in Australia are suitable.”  (3.16)

Echoing recommendations put forward by another independent body tasked with looking into Australia’s negotiation of trade agreements, the Productivity Commission, JSCOT concludes they cannot recommend ratification of ACTA without an independent and transparent assessment of its social and economic costs.   JSCOT’s finding reinforces a growing global demand that increased IP standards be backed by robust, evidence-based policy making – not rhetoric.

 Turning to copyright provisions in ACTA, JSCOT seeks clarification from the Government as to the scope of “aiding and abetting” and “commercial scale”. The report also endorses concerns put forward in several submissions about the proportionality of criminal offences for copyright infringement, and criticizes the national interest analysis for failing to put forward any empirical evidence that criminal penalties promoted through ACTA are proportionate.   Not only that, JSCOT points out, but while entrenching criminal penalties for infringement, ACTA doesn’t clearly set out balancing provisions and protections for users of content reflected in TRIPS. The report directs the Government to clarify how individual protections contained in TRIPS are to interact with enforcement provisions contained in ACTA.

Speaking to JSCOT’s report in the Senate, Greens Senator (and member of the Committee) Scott Ludlam described it as ‘the first domino being pushed over into the Trans-Pacific Partnership Agreement, and herald[ing] some very significant flaws with that treaty as well’. JSCOT’s findings send a strongly critical signal to those currently negotiating the TPP, that reinforcing ACTA standards without establishing an evidentiary basis for those standards will not fly.

JSCOT still acknowledges that appropriate measures for enforcement and protection of IP are worthy of international consideration, but draws a firm line in the sand between standards that appeal to industry interests, and standards that adequately reflect the rights and expectations of users of IP.   It now remains to be seen whether the public interest in access to and use of IP is affirmed and protected in ACTA 2.0 – the Trans-Pacific Partnership Agreement.