[Originally published in the Vanuatu Daily Post’s Weekender Edition.]

News has leaked out in dribs and drabs over the last several months about a US-led drive to negotiate an international treaty called the Anti-Counterfeiting Trade Agreement, or ACTA. Conducted under a veil of secrecy, these negotiations have been the source of considerable speculation and not a little alarm among advocates of online freedom.

Part of the reason for the alarm is the utter lack of publicly verifiable information concerning the content of the treaty. When US organisations attempted to gain access to a copy of the draft, their government withheld them, citing national security, of all things.

Intellectual Property expert professor Michael Geist writes, “The United States has drafted the chapter under enormous secrecy, with selected groups granted access under strict non-disclosure agreements and other countries (including Canada) given physical, watermarked copies designed to guard against leaks.”

In spite of their best efforts, however, details of the online enforcement aspects of the treaty leaked out last week, following a negotiating round in Seoul, South Korea.

The details don’t look good.

Geist summarised the broader strokes in a recent blog post, noting that the leak “provides firm confirmation that the treaty is not a counterfeiting trade, but a copyright treaty.”

The net effect of the proposed rules is that copyright would be radically redefined. The ability to make copies of or deconstruct other people’s content, for example, would be severely limited. Activities that breach copyright would be subject to increased scrutiny and penalties for all involved – including, potentially, Internet Service Providers who provide the connection over which such breaches occurred.

This is a real worry for ISPs. iiNet, one of Australia’s largest service providers, was recently sued by media organisations merely for allowing its customers to download unlawfully copied movies. Online rights watchdog Electronic Frontiers Australia remarked, “This lawsuit is the latest attempt by the movie industry to bully Internet Service Providers into becoming copyright police.”

ACTA would make this the norm. If the leaks are accurate, it would effectively make ISPs responsible for the conduct of their customers. While ISPs have traditionally cooperated with courts and police in their investigations, they worry that they’re being made liable for actions over which they have no real control.

Consumers find this troubling too, because such a regime would almost certainly impose a level of surveillance unacceptable to most. In the worst case scenario, it could create a situation similar to the infamous Great Firewall of China, in which everyone’s online activities are under constant scrutiny.

Pacific Island nations have thus far played no part whatsoever in these top-secret negotiations. Whatever regime emerges, however, would almost certainly be imposed on them in years to come. Australia’s copyright laws are already increasingly circumscribed by the bilateral trade agreement they signed with the US. Their participation in ACTA negotiations has been characterised as simply ensuring that they remain ‘in the tent’.

Jordan Carter of InternetNZ, a New Zealand Internet governance group, warns that Pacific Island nations need to be aware of the progress of these negotiations, as “the agreement would set a de facto standard for anticounterfeiting policy.”

Carter went on to stress that we can’t really be certain of the exact nature of this regime, as the details of both ACTA and PACER Plus have yet to be officially disclosed. Other commentators noted that it was more likely than not that ACTA’s requirements would be included in any regional trade dialogue, if only because of the perceived need in Australia to achieve a single regional solution.

If events transpire as anticipated, this could give rise to significant sovereignty concerns. EFA’s Nic Suzor states:

“The threat that we see is that sovereign states abdicate their responsibility to determine acceptable copyright policies for their own countries, and are forced into the harsh measures that are being pushed by the US copyright industry. We believe firstly that these measures mostly do not reach an appropriate balance, and second that developing copyright policy in secret trade negotiations which are essentially forced upon nation states are rarely likely to be an effective and beneficial mode of creating legislation.”

Viewed in this light, ACTA’s secretive negotiation process seems distinctly alarming. In practical terms, though, it’s unlikely that the treaty’s provisions would have significant impact on Pacific Islanders’ day-to-day lives. Like so many treaties before, it might simply be ignored. More to the point, the rest of the world might simply ignore us.

In the lead-up to its first abortive attempt at WTO accession, Vanuatu voted through laws with respect to the Berne Conventions on Copyright, but neglected to gazette them. Neither the vote nor the neglect seem to have ruffled many feathers.

A more likely scenario in which ACTA’s draconian copyright regime might make itself felt here in Vanuatu is if a foreign-owned ISP were to set up shop and simply apply the same set of rules to its Vanuatu customer base as it does to its overseas customers. In such a circumstance, however, market forces would mitigate against undue inconvenience. If people don’t like how they’re treated, they can simply cross the road to the competition.