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ComputerWorld | Wellington | Friday, 16 April, 2010
No ACTA-free trade link? ’Yeah right’, says IP lawyer
Regulatory impact statement cited as evidence
By Stephen Bell
Suspicions persist over a link between the Anti-Counterfeiting Trade Agreement (ACTA) and negotiations for international free-trade pacts, despite efforts by officials to downplay the issue.
Intellectual-property lawyer Rick Shera cites government’s regulatory impact statement on Section 92A of the Copyright Act. Under the heading “New Zealand in an International Context” this statement says: “New Zealand will need to ensure its regulations are on a par with its trading partners so that it can access the latest technology and avoid potentially damaging trade disputes.”
It goes on to refer to ACTA and then to the potential free trade agreements between NZ and Korea and the broader Trans-Pacific Partnership Trade Agreement (TPP) involving the US. This is immediately followed by a section that has been withheld under the Official Information Act.
This wording “effectively admitted that ACTA is linked to an FTA,” says Shera.
“Note the very dangerous linkage to the Korean FTA — Korea is at the forefront of graduated response, the regime popularly known as “three strikes” for tackling repeat illicit downloading of copyright material, without much due process — so we are to believe that Korea is not putting that on the table as part of an ACTA-FTA trade-off? Yeah right,” Shera says.
“[Intellectual property] maximisation has gone hand in hand with FTAs out of the US for years — look at the [US Trade Representative’s] 301 report, NAFTA, AUSFTA etc,” Shera says. “If one considers that a US FTA will be to New Zealand’s advantage, why throw the important IP bargaining chip away before you get into that negotiation? Why not save it to bargain off against [factors such as] dairy subsidies or nuclear ship visits?”
Official government response on the issue are non-committal. In an email, MFAT official Mark Sinclair says: “I explained the basis for our thinking (the two negotiations have different scope and different participants, plus the fact that the two were at quite different stages). I added that we would nevertheless be alert for any issues arising in either negotiation that could have implications for the other.
“I don’t think I can say much more than that at this point,” he writes.