Corporate intellectual property lawyers are busily scrutinising the landmark iiNet decision. And the implications for global anti-counterfeiting negotiations are only now being realised, at a crucial time in an important policy debate.

The Australian media has made only token reference to the very sensitive Anti-Counterfeiting Trade Agreement (ACTA) negotiations. Some articles have focused on counterfeit goods but there appears to have been no analysis of the possible legal consequences this treaty would impose on Australians.

What we can expect, however, is more coverage on “counterfeiting” and piracy in the media justifying the need for an ACTA treaty. Spectacular and newsworthy cases of damage done to the public and businesses and hints of financial contributions to terrorism and the role of organised crime will roll out as the negotiations on ACTA draw to a close. Australia’s politicians will no doubt be quietly lobbied by the big end of town and encouraged to sign-on.

The question is not whether counterfeit goods have terrible consequences — we know fake pharmaceuticals (mostly in developing countries), fake aircraft parts, fake Botox and the like are of acute concern — but this is not the key rationale, especially when ACTA includes copyright issues attached to the internet and trademarks.

The intellectual property counterfeit agenda is complex. IP rights are determined, awarded and implemented at the national level. There is no global harmonised intellectual property law. The WTO TRIPS agreement provides a set of minimum standards, and free-trade agreements such as the Australia/United States deal increased specific commitments, but Australia’s IP laws are still substantially different to the US and others.

If the implementation and legal standing of IP rights vary from country to country, how can international standards of enforcement be relevant?

Dealing with counterfeit goods is not a new issue. We already have a whole range of border security, enforcement procedures and legal options at the national level and co-operation and collaboration at the international level to deal with such events. So what is different about this proposed treaty?

DFAT held a couple of briefings for those who made formal submissions. A discussion paper details some very questionable approaches to “enforcement” (civil and criminal). One contentious observation is that a key difference between ACTA and other treaties would be the ability of a private sector entity to take action (have goods seized or ISP services withdrawn) without having to demonstrate first in a court of law that an IP infringement had occurred.

The ACTA aims to “… establish international standards for enforcing intellectual property rights. The intended focus is on counterfeiting and piracy activities that significantly affect commercial interests, rather than on the activities of ordinary citizens.”

But the scope is broad. For example, it points to a “de minimis exception that could permit travellers to bring in goods for personal use” (for example, defining the right to bring in a specific amount of counterfeit/pirated goods — for personal use).

Customs already operates within existing copyright laws that address counterfeit goods. If the ACTA language is adopted, will officials actively check to see if the “de minimus exception” is being observed? How much pressure will be put on Customs officials to check — can we trust the more aggressive members of the IP industry not to use this type of commitment as yet another enforcement tool?

It will be argued by the IP rights industry that Australia has signed hundreds of international treaties and this is just one more. But these obligations are defined and implemented specifically within a national policy framework — the Australian Government establishes its own legal system, defines what will be criminalised, what legal penalties will be applied and establishes frameworks of social policy to complement Australia’s rule-of-law.

National sovereignty rules also apply to the WTO TRIPS (Trade-Related Aspects of Intellectual Property Rights) treaty obligations — what is patented in the US or Japan is not automatically a patent in Australia. Interpretations of trade law, patent and copyright products are defined within national borders. This aspect alone raises large questions about what can be legally defined as “counterfeit” or “pirated” from country to country.

The ACTA initiative is seen as a systematic attempt to ramp-up and develop new international IP enforcement tools; to provide new access and decision-making rights for IP owners and to interpret IP obligations in the broadest of terms by:

Raising intellectual property enforcement to a much higher level of political engagement by imposing policy and legal obligations on governments to respond in a specific manner

Transfer the obligations and costs of enforcement of commercial activities from the private sector to the public, or in some cases to third parties such as ISP providers

Giving right holders [a commercial entity or individual claiming to hold intellectual property rights] enhanced access to “key” information held by Australian authorities; quasi-legal privileges to negotiate directly with Australian authorities; and, ability to decide on or override actions generally taken by customs or courts.

This issue is problematic and much more complex than can be described here. Unfortunately, negotiations have proceeded out of the spotlight of most Australians and our political representatives. Those who have registered concerns have failed to elicit any substantive reassurance from agencies managing the negotiations.

Key consumer and business organisations attempted to register their deep concern by developing a set of principles to guide Australia’s negotiating position. We are unlikely to see whether DFAT or the several ministers holding responsibility for these issues, have taken any notice of these concerns until the treaty is finalised.