ACTA in trouble in Australia

The Age is reporting that a Parliamentary committee has “struck down” Australia’s signing of ACTA.

As it turns out, the Joint Standing Committee on Treaties has unanimously recommended that Australia should not ratify ACTA at this time. Recommendation 8 states:

That the Anti-Counterfeiting Trade Agreement not be ratified by Australia until the:

  • Joint Standing Committee on Treaties has received and considered the independent and transparent assessment of the economic and social benefits and costs of the Agreement referred to in Recommendation 2;
  • Australian Law Reform Commission has reported on its Inquiry into Copyright and the Digital Economy; and
  • the Australian Government has issued notices of clarification in relation to the terms of the Agreement as recommended in the other recommendations of this report.

Recommendation 9 goes on to exhort any future Committee on Treaties to take into account what is happening with ACTA in other jurisdictions including the EU and the USA.

Recommendations 3 to 7 relate to more specific matters such as, for example, a need to clarify the meanings of ‘aiding and abetting’ and ‘commercial scale’.

Apart from specific matters of particular detail, the Joint Standing Committee seems to have had two main concerns about ratification:

First, the Treaty was tabled in Parliament with a National Interest Assessment  (NIA). However, the NIA did not include an analysis of the economic impact that ratifying ACTA would have on Australia.

One reason why there was no economic analysis feeds into the Joint Standing Committee’s second major concern: the NIA stated that ACTA would not require any changes to existing Australian law. The benefit of ratifying ACTA (early) was that it would give Australia influence:

2.13 The NIA encourages the early ratification of ACTA, so as to enable Australia to play an influential role in the ACTA Committee, which will consider, inter alia, rules and procedures for reviewing the implementation and operations of ACTA.

In the absence of an economic assessment, however, the Joint Standing Committee noted there was an absence of reliable evidence that there is a “problem” that needs to be addressed. See [3.6] and reference to the concerns expressed, amongst others, by the US Government Accountability Office.

Secondly, the Joint Standing Committee received a number of submissions which challenged the view that no changes would be required to Australian law. For example, what does “aid and abet” or “commercial scale” mean? To what extent, if at all, are patents caught up in what is counterfeit?

How valid those concerns are may require further investigation but, as As. Prof. Weatherall pointed out, the ACTA Committee will have a role in developing more detailed enforcement mechanisms. The Joint Standing Committee also noted in several places that ACTA does not include the defences or exceptions expressed in TRIPS.

So far as I can work out (it is a long time since I studied constitutional law so let me know if you know better), the Joint Standing Committee has not in fact “struck down” ACTA or Australia ratifying it. The Committee’s recommendations do not constitute a resolution of a House of Parliament and ACTA is not a legislative instrument subject to disallowance on such a resolution.

As a treaty, ACTA would become part of our domestic law only if Parliament passed a statute to implement it. The Government could still ratify ACTA but the Joint Standing Committee’s recommendations are the unanimous recommendations of a cross-party committee so they plainly reflect a level of disquiet with ACTA within Parliament at a high level: a level of disquiet which appears to be felt even within the EU (one of the IP-exporting parts of the world one might think likely to support such a regime).

Download copies of the Committee’s report from here (pdf).

Does anyone think Google is advertising the sponsored links?

The Full Federal Court in Australia does.

The ACCC has successfully appealed the Google Adwords case for misleading and deceptive conduct.

So, for example, Alpha Dog Trainging has been operating a dogtraining business for 12 years. Dog Training Australia (Ausdog) bought ads on the keywords Alpha Dog Training through Google’s Adwords program. One ad generated was:

Alpha Dog Training 
DogTrainingAustralia.com.au All Breeds. We come to you. No dog that can’t be trained. 

Instead of being taken through through to Alpha Dog Training’s website, however, a user who clicked on the ad was taken through to Ausdog’s website.

A clear case of misleading or deceptive conduct by Ausdog.

Because of its role in “selecting” which ads got placed in what order, Google has also been found liable.

Prof. King, formerly an ACCC commissioner, highlights why and thinks the Court got it seriously wrong.

Did we just kill the Internet in Australia?

ACCC v Google Inc. [2012] FCAFC 49 (Keane CJ, Jacobson and Lander JJ)

Another round in the plain packaging tobacco war

This is a bit behind as it happened over the break:

The “tobacco plain packaging” legislation became law last December and, as you will recall, Philip Morris Asia has initiated an arbitration proceeding under the Australia-Hong Kong Investment Treaty.

Australia filed its “defence” late in December, alleging that Philip Morris Asia bought the assets in question after the Government’s plans were known and so hasn’t lost any value:

Prof. Davison has a typically wry report

Philip Morris’ complaint and Australia’s “defence” are available via here.

 

Australia signed up to ACTA

Last Saturday, while half of us were trying not to watch Meat Loaf earn a reported $500,ooo (here, here or here) or tweeting, the Minister for Trade travelled to Japan to sign ACTA (the Department’s home page currently has a photograph of the actual signing).

According to the Minister’s Press Release:

The implementation of ACTA will not require legislative changes in Australia. Rather, trading partners will adapt their laws to the high standards of IP enforcement that already apply in Australia.

According to the USTR, no changes would be required to US law either.

The Minister for Trade’s Press Release states that Australia is one of 10 countries attending the signing + the EU. Howard Knopf reports that those signing included Australia, Canada,  Japan, Morocco, New Zealand, Singapore, (South) Korea & USA, but the EU didn’t. According to ZDNet, the EU still working on it. So this may be a bit “optimistic”.

According to the USTR, the EU, Mexico and Switzerland did attend and “confirmed their continuing strong support for and preparations to sign the Agreement as soon as practicable”.

Lid dip @howardknopf

A fairly close look at ACTA

Terry Hart embarks on a fairly detailed comparison of (what was known about the draft) ACTA and US copyright law to see how much would need to change “ACTA: Thought for FUD” in 4 parts

Part 1

Part 2

Part 3

Part 4

One might well be very sceptical about something being negotiated “in private”. Nonetheless, if you get past the reliance on proposed art. 1.2 as “not requiring new laws”, it is definitely worth a read. If nothing else, you will come away very much better informed.

Lid dip: Ben Sheffner

Injurious falsehood and also passing off

The tort of injurious falsehood (sometimes called malicious falsehood or even trade libel) has been largely superseded (but not totally extinguished) by passing off and the modern wrongs against misleading or deceptive conduct. In a helpful, practical primer, Jagot J has had to explore its operation as one of the issues in the Jack Brabham Engines case. There is also an elementary lesson to learn in passing off.

In overview, the case concerned 2 rival businesses engaged in developing car engines. They agreed to pool their resources and develop technologies through a new corporate vehicle, Jack Brabham Engines (JBE). The principals in the competitors became directors and shareholders and the great man himself was a shareholder. Things didn’t work out and one of the principals, Mr Beare, who had secured patents for technology he had developed earlier decided to invest elsewhere in competition with JBE.

Amongst other things, he published statements on his website and in ASIC documents which the applicants complained were injurious falsehoods. Jagot J rejected these allegations.

Her Honour pointed out at [246] that the tort required proof of 3 ingredients: proof that (1) the respondent has made a false statement, (2) that the respondent made the statement maliciously and (3) as a result the applicant has suffered actual damage.

Her Honour quoted Gleeson CJ on the difference between the tort and defamation:

The tort of defamation protects reputation, and it does so in a manner that involves a balancing of various considerations including the right of free speech. The tort of injurious falsehood protects against provable economic loss resulting from false and malicious statements.

Jagot J at [247] also endorsed the statement in Halsbury’s Law of Australia as a convenient summary of what is required for the statement to be malicious:

The false publication must have been made maliciously. A person who acted in good faith is therefore not liable. Malice is a question of motive, intention or state of mind and involves the use of an occasion for some indirect purpose or indirect motive such as to cause injury to another person. Malice may exist without an actual intention to injure. Malice may not be inferred from the fact of publication but will be inferred where the false publication was made with:
(1) an intent to injure without just cause;
(2) knowledge of their falsity; or
(3) reckless indifference to its truth or falsity.
No action will lie where the false publication was made with mere lack of care or with an honest belief in its truth. An honest belief in the truth of the statement will rebut any inference of malice.

The applicants failed on all heads for a wide variety of reasons. Some of the statements were not even pleaded. The applicants failed to prove that others were even false and, at every turn, the statements were not shown to be malicious because they were the honest beliefs or opinions of Mr Beare. There was also no proof of damage.

The difficulties of proving malice in particular highlight why, if the conduct is in trade or commerce, the tort has largely been supplanted by the fair trading laws such as  s 52 (in the case of corporations) and s 9 / s 42 (in the case of individuals).

The applicants also alleged passing off from use of the names “Beare Technology Engine” and “Beare Head Technology”. The names were not registered as trade marks, hence any rights had to arise at common law.

The problem for the applicants here was that Mr Beare had used these names in his business before JBE was incorporated and, while he or his company had authorised JBE to use the names, JBE was unable to identify any assignment of the earlier business and its goodwill to JBE. As a result, JBE did not own the relevant reputation.

Jack Brabham Engines Limited v Beare [2010] FCA 872

Draft ACTA text released

DFAT ‘welcomes‘ the release of the draft ACTA text:

http://www.dfat.gov.au/trade/acta/index.html

Draft text (pdf)

(Post updated to tidy up the links on 29/4)

TRIPs protocol: Australian implementation consultation

IP Australia has issued a consultation paper on implementing the TRIPS protocol.

The TRIPS protocol is the modification (or is that clarification?) of TRIPS obligations to improve the availability of “crisis” pharmaceuticals in least developed and developing countries. From the discussion paper:

The TRIPS Protocol seeks to address this problem by amending the TRIPS Agreement to permit WTO members to issue compulsory licences to produce patented pharmaceutical products for export to least-developed and developing countries. The main features of the Protocol are:
• Licences may only be issued for products of the pharmaceutical sector needed to address public health concerns.
• Countries eligible to import pharmaceuticals under the system comprise any least-developed WTO country or any other WTO country that has notified the TRIPS Council.
• Importing countries are obliged to provide the TRIPS Council with details such as the names and quantities of the products needed and whether they need to issue a compulsory licence in their own country.
• Exporting countries are obliged to notify the TRIPS Council of a range of details and ensure that importing countries have done the same.
• Both importers and exporters must have in place anti-diversion measures to ensure the products produced under the system reach the intended market and are not re-exported.

Read the paper here (pdf).

Submissions due by 4 June 2010.

ACTA coming a little bit more out of the shadows

Michael Geist has a link to the leaked EU comments on the chapter for third party liability on the internet – being drafted by the USA.

The Guardian has weighed into the debate.

Kim Weatherall has emerged from her self-imposed seclusion to comment here, here and here.

DFAT’s must recent summary and overview of key elements. Anondyne USTR statement.

Selected microblog posts (w/e 11/09/09)

Selected microblog posts from the past week:

  • RT @VogeleLaw: Found: Mary Beth Peter’s testimony (via @cathygellis – thanks!) http://bit.ly/Cijau #gbs_hearing [US Copyright Register opposes Google Book Settlement]
  • Google Book in the EU? http://ff.im/-7OYfA
  • RT @MegLG: A Billion Dollar Test of the DMCA Safe Harbors in Viacom v YouTube http://ow.ly/om66 via Cyberlaw Cases
  • RT @michaelgeist: Microsoft wins stay of injunction on Word. Case arises from patent claim by Toronto’s i4i.http://bit.ly/oDmLU
  • IP Think Tank Blog looks at i4i v Microsofthttp://ff.im/-7zfKp
  • AAR on UWA v Gray – Universities and their employees: who owns developed IP? http://ff.im/-7RmgI
  • Hannahland: Ph D candidate on UWA v Gray http://ff.im/-7WcoR