KAFTA copyright language hints at overturning iiNet decision, is wholly unsupported by evidence

Kim Weatherall has an excellent analysis of the proposed IP chapter of the Korea – Australia Free Trade Agreement. You should go read it now.

One of the most concerning things is that the agreement would require Australia to give

An unclear, potentially extensive undertaking to ‘provide measures’ to ‘curtail’ ‘repeated copyright infringement on the Internet’ (note – not copyright piracy; not copyright infringement causing substantial prejudice to copyright owners – but any repeated infringement);

This type of wording hints at an obligation to legislatively overturn the iiNet case, or to introduce something like graduated response (three-strikes) or website blocking. As Kim points out, the provision wouldn’t actually require this, but including the language has strong rhetorical force.

Let’s not mince words; this is just stupid. We don’t have the evidence that stronger copyright laws are required, we don’t have evidence that graduated response works, but it is problematic for due process, and there is absolutely no reason, if it is required, that we should entrench these kind of obligations in bilateral trade agreements, where we can’t easily modify them. This isn’t evidence-based policy; it’s abdicating our legislative responsibility to serve the interests of foreign rightsholders. It really makes no sense.