Posts Tagged ‘treaty’

ACTA in trouble in Australia

Thursday, June 28th, 2012

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).

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Another round in the plain packaging tobacco war

Sunday, February 19th, 2012

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.

 

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Phillip Morris sues Australia!

Tuesday, June 28th, 2011

Phillip Morris has announced that it plans to sue Australia under the Australia-Hong Kong (SA) Bilateral Investment Treaty over the planned plain packaging legislation.

What the Government is proposing to do

Under the proposed Tobacco Plain Packaging Bill 2011, tobacco companies would be required to adopt a prescribed form of packaging for tobacco products.

In its most recent form, this would involve all tobacco companies using the same olive brown colour for their packaging with large, graphic images and health warnings. Some illustrations here. The contemplated regulations would limit brand names to be positioned on the top, bottom and a designated position on the front of the box in Lucida sans serif font, point size 14. (See pp. 12 and 13 of the Consultation Paper (pdf).

The trade mark lawyers amongst us will notice that clause 15 of the proposed bill will preclude a registered trade mark from being removed for non-use resulting from the strictures imposed by the proposed legislation.

The announced intention is for the laws to come into full operation on 1 July 2012. The proposal is only in exposure draft form at this stage, with public comment being scheduled to have closed by 6 June. However, the Opposition has apparently indicated its support for the Government’s position.

What Phillip Morris claims

If you read a newspaper in Australia, you can hardly have failed to notice the advertisements taken out by the tobacco companies violently opposed to this plan. There is also a website.

Phillip Morris has taken matters a step further and lodged a notice of claim against Australia under the Australia-Hong Kong (SAR) Bilateral Investment Treaty.

Unlike Free Trade Agreements and WTO / TRIPS, apparently, companies can bring claims against a party (alleged) to be in breach of its treaty obligations, not just another country party.

It would appear that Phillip Morris is not just after compensation but also an order requiring Australia to suspend operation of the law.

Details about the basis of Phillip Morris’ claim are sketchy at this stage. According to Phillip Morris’ own News Release:

“The forced removal of trade marks and other valuable intellectual property is a clear violation of the terms of the bilateral investment treaty between Australia and Hong Kong. We believe we have a very strong legal case and will be seeking significant financial compensation for the damage to our business”.

The speculation is that Phillip Morris will argue that the proposed law is an expropriation of Phillip Morris’ investments (trade mark rights) without fair compensation: see Article 6.

According to its Press Release, Phillip Morris has apparently garnered support from an eminent Georgetown professor (and Harvard graduate) for its position.

The Government has previously denied its plans will breach its international obligations.

Assoc. Prof. Jurgen Kurtz at Melbourne University has a very interesting consideration of the issues, noting that there is case law which would support the Government’s position as well as a contrary line. Prof. Rothwell from the ANU also explores the issues. He also reportedly contends that Phillip Morris may well have lodged its complaint too soon as the bill is not law yet, although, presumably, that would not preclude another complaint at a later stage.

The News Release also indicates that a period of 3 months’ negotiating follows before an arbitration proceeding is implemented under the Arbitration Rules of the United Nations Commission on International Trade Law 2010. The process will not be a short one!

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ACTA coming a little bit more out of the shadows

Thursday, November 12th, 2009

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.

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WIPO Copyright progress

Monday, June 1st, 2009

William Lye has a comprehensive report on the conclusion of the latest round of WIPO’s Standing Committee on Copyright – a late agreement:

  1. to address a proposed treaty on copyright exceptions for visually impaired persons and others; and
  2. for renewed focus on the rights of audio-visual performances; and
  3. to continue discussion on the need to protect (badly misunderstood) broadcasters.

William Lye’s report here; the Chairman’s draft conclusions here. The discussion of exceptions seems to be much broader than just rights of the visually impaired: full range of discussion papers and working materials here and here.

For some reason, the Australian government is opposed to the proposals for visually impaired persons: Nic Suzor wants to explain to you why you should do something to help change this here.

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