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Regulating the net in the dark

Regulating the net in the dark

In devising a worldwide framework of intellectual property rights, a balance must be struck between the rights of those who create content and those who consume it.

Finding out what the great and the good are going to do to the internet to curb copyright piracy is like Cold War Kremlinology, or deciphering Linear B. Talks have been going on for two years now behind closed doors for an anti-counterfeiting trade agreement. The 13 international participants so far include the United States, the European Union, Australia, New Zealand, Canada, Japan and Korea but – remarkably – not China, the source of much pirated copyright material. But as these are trade talks, in which each country's agenda and negotiating position are necessarily secret, little has leaked out about what precisely is proposed.

From published information we know the agreement would cover forms of piracy of intellectual property – from music downloads to fake designer-label handbags – a worldwide international trade worth billions of dollars a year in total, according to an estimate published by the Organisation for Economic Co-operation and Development. The obscurity and conflict begin here. Exactly how many billion dollars? That depends. The OECD says $200 billion. But critics of the process to establish an agreement say the losses are exaggerated estimates made by large stakeholders in the process in their own interest, and accepted without question by governments. In the case of the internet, big movie production houses and the music industry want the strictest possible sanctions against piracy, and are overstating their case to bully governments into making them law. No independent analysis has objectively quantified the losses, so that claim cannot be checked.

Into this fog of ignorance and self-interest has fallen a European Commission briefing paper on the US delegation's agenda for the internet section of the talks. Washington, in effect, wants to globalise the intellectual property provisions of various bilateral free trade agreements it has negotiated, in line with its own domestic copyright legislation, the Digital Millennium Copyright Act. The Department of Foreign Affairs and Trade has reassured Australians that no final decision on joining the agreement will be made without public consultation.

That is good, but since Australia has signed a free trade agreement with the US which embodies its tight

copyright agenda, it may not make much difference. In the meantime, the agreement's possible controls will not only affect the free flow of information on the worldwide web but also, at a more profound level, challenge the nature of the internet itself.

In devising a worldwide framework of intellectual property rights a balance must, of course, be struck between the rights of those who create downloadable internet content – and other forms of intellectual property – and of those who consume it. It is hard to think of a less satisfactory way to go about it.

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