Submission Draft

What should be the focus of NZ's participation in ACTA?

• to assert first and foremost that copyright holders' rights must be balanced against the privacy and fair use rights of the public, especially for format shifting of media they have purchased - SamV

• to ensure separation of powers - between immigration officials who survey, customs police who investigate discovered material, and overseas enforcement agencies. This should be modelled after established criminal enforcement networks such as Interpol. All interactions with these overseas agencies must be subject to judicial oversight - SamV

What should New Zealand be trying to achieve through participation in the negotiations?

• recognition of the foundation of copyright law - that society agree to not copy material, and in return for this the material becomes public domain within a historically insignificant amount of time (ie 75 years). This must include a mechanism for material to pass naturally into the public domain - SamV

• defusing of any terms that may impinge on fair rights of the public - SamV

• limitation of penalties so that the common law right to only be punished in accordance with the severity of the crime is honoured - SamV

What matters should New Zealand seek to have covered in such an agreement?

• no introduction of provisions which would effectively prohibit technologies - including:
  • cloud computing and self-establishing "peer to peer" networks, especially where those networks can provide reasonable assurance that copyrights are not being infringed - SamV
  • media decoding software that allows media to be played on a particular platform (eg, DeCSS). Especially as these technologies are not required for violating copyright, it must be the infringement, and not the capability, that is prohibited - SamV

• no blanket scanning - scanning personally carried data would be performed by "red area" customs checks - SamV

• scanning tools must be able to handle common storage formats of a wide range of filesystems, including filesystems writable by popular freely available software - SamV

• presumption of innocence - if someone, at a border check, decoding of data is not possible by the scanners and they are using a well-known filesystem - they should not be presumed to be carrying violated copyright material if they assert they are not, though the fact may be noted along with limited relevant information. Scanning of Peer to Peer networks performing active filesharing must demonstrate their copyright violation by receiving copyright material, and should not merely be considered guilty for being connected to the cloud. - SamV

• no copies of personal data may be taken by immigration officials unless they have identified an infringement and are reporting an offence to the police - SamV

• In the event of "confiscation" of storage, the person should have the option to pay for the bulk media (eg, tape) cost of taking a copy of their device in duplicate for police records, and having their device returned to them with infringing information or the entire device wiped, or request their own data be saved from the device and given to them on duplicate media - SamV

Should the agreement seek to establish new international norms
and strong standards on intellectual property enforcement over and above
those we are already obligated to provide under the WTO TRIPS Agreement?

What types of intellectual property rights enforcement should be covered
by the agreement; limited to just trade mark and/or copyright
infringement or should it include infringement of other intellectual
property rights such as patents, geographical indications, trade
secrets, and/or industrial designs?

Should the agreement set out minimum standards of civil, administrative and criminal enforcement of intellectual property rights and if so what would be those minimum standards?