PIJIP Research Paper No. 14: Will Individuals Aboard the Cultural Pirate Ship Be Struck by the ACTA's Cannonball?

Throughout the Fall 2010 semester, PIJIP will release a series of Research Papers on ACTA.  The series is available at http://digitalcommons.wcl.american.edu/research/

Shalom Andrews
PIJIP Research Paper No. 14
September 2010

Abstract

Combating internet piracy is a global challenge. Fundamentally, piracy lingers because it has become a culturally acceptable behaviour that is under-enforced. The Anti-Counterfeiting Trade Agreement (ACTA) is the latest enforcement measure aimed at sinking the pirate ship. 

The first part of this paper will explore piracy as a cultural phenomenon and how it interacts with Australian civil and criminal law.  Pirates, who have awareness that their plundering is wrong, convince themselves that: there are moral grounds for their escapades; there is a government conspiracy to reduce internet freedom; they are fighting globalisation by attacking the corporations who reap disproportionate booty, often at the expense of artists and creators; there are no negative moral dilemmas to consider as the victims are faceless; property is not being stolen from a physical store, and with the potential for endless downloads, there are no vendors who will suffer from having less stock to sell. But most importantly, pirates know that there is a slim chance of being caught when they are downloading or uploading for personal use, and non-commercial gain. Primarily, piracy is tempting because it is easy, convenient and free. 

The second part of this paper will look at the legislative response to piracy under Australian law. Australia already has a draconian set of intellectual property (IP) laws which expanded in 2006 to meet the requirements of the Australia-United States Free Trade Agreement (AUSFTA).  The scope of copyright infringement offences were broadened to target individuals, and penalties were increased. However, there is a difference between creating stringent laws and enforcing them. As Australia has not tested its new IP laws in relation to individuals on a grand scale, international comparison becomes valuable. From 2003-2008 the Record Industry Association of America (RIAA) underwent mass waves of individual suits against music pirates in America. All but two of the 18,000 targets settled out of court.

Thirdly, this paper will provide an analysis of how the ACTA might impact on piracy in Australia. The ACTA is a plurilateral agreement currently being negotiated by ten counties and the European Union (EU). Its alleged purpose is to establish international standards for enforcing IP rights.  Its negotiators (which include Australian representatives) provided a public draft (“the Public Draft”) of the proposed text in April 2010. It was criticised for going beyond enforcement measures and into creating substantive law. This paper will address the specific concerns expressed by leading analysts of the ACTA that implementation of these measures would mean further targeting of individuals and greater criminalisation of offences to the detriment of civil liberties and internet freedom.   
 
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