Good afternoon and welcome to the BRR Legal Brief, looking at the major legal issues affecting Australian business.  I’m David Bushby and today we’re talking about the international Anti-Counterfeiting Trade Agreement otherwise known as the ACTA Agreement, which Australia and a number of other countries have signed yet just last week the European Parliament voted comprehensively against the agreement.  Here to discuss where this leaves us in the international anti-counterfeiting stage is Derek Baigent from Griffith Hack, welcome Derek.

Thanks David welcome.

Derek I just wanted to start off with this vote in the European Parliament pretty much leaves the agreement dead in the water, you’re looking at 478 votes against, 165 abstentions and only 39 voting in favour.  A bit of background first, what was the ACTA agreement designed to do?

Yeah look David I think you’re right, I think it was a comprehensive rejection of ACTA by Europe and I think in the context of describing what ACTA was supposed to achieve it’s worth giving you some background just to put some context around that.  Counterfeiting and digital piracy are really major global concerns, in terms of the loss of revenue to brand owners and to owners of copyright, so the music industry, the film industry, the annual loss is estimated for those guys at around $600 billion annually.  So there’s this huge concern around counterfeiting and about digital piracy and ACTA was intended primarily to try and put in place some international mechanisms to try and better enforce those kind of rights, those rights related to brands and those rights related to copyright and to film and to media, so that was the primary intention behind it, and not necessarily so much for the developed western economies if you like, I mean if you look at Australia and you look at the US, you know those kind of jurisdictions have got pretty good protection in place already in terms of their trade mark protection if you like, copyright protection, their border protection regimes, in Australia the Australian Customs provides a really good service in seizing counterfeit goods at the borders.  So not necessarily so much aimed at those really developed economies but more aimed at the emerging economies, the Russia, the China, the Brazil, those major economies that are growing and growing very rapidly, but where the perception internationally is that perhaps they don’t have the kind of protection they ought to have for brand owners.  For China for example I’ve seen figures where people estimate that as much as 8% of the gross domestic product of China is related to either counterfeit goods or to digital piracy.  So ACTA was really aimed at trying to kind of resolve that problem, provide a frame work so people could say look going forward this is how we need to deal with some of these problems.

Well given I guess the importance of the issue and those figures that you’re talking about they’re substantial amounts, why do you think that the Europeans would vote down so comprehensively that agreement?

Yeah look it’s an interesting one and look in my view it’s not actually surprising, I don’t think anyone was surprised when Europe voted that down.  There’s been in Europe particularly there’s been some growing grass roots level ground swell if you like against ACTA, and that’s been seen for about a year or so, at least, there’s been demonstrations across Europe earlier this year, there’s been petitions filed at the EU with you know millions of people signing them saying we don’t want ACTA.  And the European Parliament I think really picked up on that and I think the part of that the European Parliament picked up on I think was what was perceived as the real uncertainty and the language of the treaty.  ACTA’s a treaty it has clauses that are intended to become legislation, but those clauses I think the perception was they were broad but also very vague, which meant they would be open to misinterpretation, so you might find that one country might turn around and say in implementing that particular clause we’re going to assume it means this and we’ll have this language around it, whereas other countries might actually read it and think well we think it means something different.  So there’s that level of uncertainty and the fear I think amongst Europe and the people that were protesting against it was that some of the clauses could be interpreted in a very punitive sense.  For example there were provisions relating to the criminalisation of large scale sharing of digital content and a few other things.  So no longer will that be a civil offence where you might get a fine if you download some music, there’s criminal offences in ACTA.  Now the problem is how do you draw the line between an individual consumer who might you know I wouldn’t say innocently but might actually download one song and you know a large corporate entity that has the aim of kind of you know file sharing and making a lot of money out of it.  And people are saying look guys we might actually end up criminalising individuals, which is not really what ACTA intended to do, but because the language is vague then the fear is well maybe that will happen.  And another fear around that was well in order to facilitate this kind of like anti-file sharing if you like you’ve got to have a degree of monitoring, you’ve got have internet service providers have got to be able to say look I’m going to give you the name and address of the person associated with that IP address for example.  So there’s fears that it could lead to more privacy invasion.  So those are the kind of fears that were wrapped up in the European decision and as I say there’s been a ground swell for a while in Europe saying look guys no one really knows what this means, this ACTA Act so let’s not pass it.  And I think that’s the reason it wasn’t passed in Europe.

Well I mean obviously there’s Australia and there’s major economies that have signed up to this treaty including the US and also Japan and from memory there wasn’t that same ground swell of opposition at the time.  So I guess how will the European vote affect Australia I guess?

Yeah it’s an interesting one because on one view, and this is the view that the Department of Foreign Affairs has taken, domestically Australian legislation is pretty good, we’ve got a really got set of, as I said border protection regime, we’ve got the Trade Marks Act, the Copyright Act, we’ve got the Australian Consumer Law which is what effectively used to be the Trade Practices Act, we’re pretty well protected.  And the Department of Foreign Affairs took the view that Australia in order to fulfil its obligations under ACTA, didn’t actually need to do anything at all.  We were already there, we’re doing what ACTA says that we ought to do as a nation, which means that whether or not Australia implements ACTA nothing changes.  If we vote to ratify it, the Government won’t introduce any new legislation; if we decide not to ratify it the Government won’t introduce any new legislation.  So domestically it shouldn’t make any difference, and in broad terms that’s probably the same in a lot of you know developed western economies where we’ve got good protection right.  Where it will make a difference is in the developing economies, if we don’t ratify then Brazil won’t ratify it, then Russia won’t ratify it, which means that Australian rights holders and Australian brand owners will suffer ultimately because they might not get the protection that they would otherwise have got in Brazil, or in China or in Russia.  But in terms of domestically in Australia I don’t think it will make any difference at all.

Well just on the ratification point given that this has happened, will that affect how we may or may not ratify this agreement as it is?

Look I think it’s pretty unlikely we’ll ratify it.  Craig Emerson who’s the Trade Minister, the Federal Trade Minister, he’s come out and he’s said look no decision’s yet been made whether to push ahead or whether to just walk away, but I think on balance I think people will think look too hard, let’s think again, so we’ll see.

Well I guess just finally to wrap up and given that the vote yes was very comprehensively defeated, do you think that there may be tweaks to the treaty could ACTA number two rise from the ashes?

Look I think it will.  I think certainly the rights owners and the brand owners have very powerful lobby organisations and if nothing else those organisations I think will try very hard to make something happen.  And I personally think it should happen, as I said in Australia I think we have good protection but that’s necessarily the case elsewhere.  And as a result of that Australian brands suffer.  In terms of any changes that might happen I don’t think that we’re going to see any kind of wholesale watering down of ACTA, I think actually what will happen, hopefully what will happen is we’ll see some tightening up of the language, to make some of those clauses more definite, and say actually what we meant by this and what we wanted to achieve was the following, so therefore what language do we need to use to get there.  And the other thing that I think ought to happen and probably will happen is a lot of criticism from ACTA came about because originally at its inception the original negotiations for ACTA were actually confidential, they were secret negotiations that interestingly did not actually come to light until WikiLeaks leaked them in 2008, so there’s this kind of conspiracy theory going on that there’s a global conspiracy between the brand owners and the rights owners and the governments that the people at large, if you like, have been left out of that, which I think has actually flavoured some of the debate that’s been going on.  And I think actually ACTA probably will be rethought and hopefully when they rethink it there’ll be more of a general broader engagement with individuals and the kind of people who actual consume the media rather than necessarily the content creators and the brand creators, because ultimately in sort of western democracy if you like you’ve got to get the people to buy in and say yes we agree these are good ideas.  So hopefully when they do rethink we’ll have a bit more engagement on a level of the consumer into what kind of protection we ought to have.

We’ll certainly look forward to seeing how this issue develops and thank you again for your time today Derek.

Thanks David.

And viewers thank you for tuning in, we look forward to having your company for next week’s BRR Media Legal Brief.