Friday, May 16, 2008

The Anti-Counterfeiting Trade Agreement (ACTA)... the wha...?

Few people other than intellectual property geeks and stakeholders will be aware of the Anti-Counterfeiting Trade Agreement, ACTA. And why should they? It is an abstract proposal about a complicated area of law, the very mention of which induces a glazed-eyed stupor in the listener's demeanor.

Nevertheless, ACTA, should it ever come to pass, will become a hugely important global instrument governing the flow of information and information-based products around the world. Aaron Shaw, writing for the Knowledge Ecology Studies journal, provides a critical perspective of what he sees as this latest information feudalist's charter, as well as an emotive call to arms to oppose said charter. Though severely critical, it is, nevertheless, the most comprehensive and accessible analysis of the still scarcely available details of ACTA that I've come across. Thoroughly recommended for those who support and oppose ACTA, in addition to the wider general public, who really should be aware of initiatives likely to have a fundamental impact on downstream access to information.
"In mid-February 2008, the Office of the United States Trade Representative (USTR) issued a request for public comments on the proposed “Anti-Counterfeiting Trade Agreement” (ACTA). However, with the exception of a handful of press releases, information about the proposal itself remains scarce. Mainstream media outlets have printed USTR officials' talking points about the importance of winning “the fight against fakes,” but have failed to analyze either the origins or the nature of the ACTA in any detail. What is ACTA? Where did it come from? How would it affect the trade and governance of the knowledge-based economy? In what follows, I provide preliminary answers to these questions and argue that ACTA would impose a narrow trade agenda at the expense of global cooperation and evidence-based policies.

ACTA is a proposed “plurilateral” agreement that would apply new, stricter legal and enforcement standards to the trade in informational goods. These new standards would extend far beyond those required by the WTO TRIPS Agreement. In addition, some of the proposals for the ACTA include sweeping provisions to criminalize information use practices currently allowed under U.S., European, and international law. In these proposals, the agreement would be obligate states, law enforcement officials, and private firms to intrude on the privacy of “alleged” infringers without sufficient legal due process.[1] A small coalition of powerful states supports ACTA, led by the trade representatives of the United States, Japan, Switzerland and the 27 member states of the European Union, represented by the European Commission. These states have also invited representatives from Canada, New Zealand, Mexico, Australia and South Korea to participate in the negotiations. Although ACTA remains in pre-negotiation stages, the signatories would likely seek to impose the terms of the agreement onto developing countries in subsequent bilateral negotiations...

So why is ACTA such a big deal? If signed, the agreement would constitute a diplomatic putsch by a handful of wealthy states and corporations against the rest of the world. Already, it signals an overt and troubling rejection of multilateralism. The so-called “plurilateral” approach represents an outdated model of international treaty-making whereby the unelected representatives of Northern states and a few corporate lobbyists dictate the rules of global markets. Such arrangements were commonplace during the 1990s under the neo-liberal “Washington Consensus” and prior to the Doha Round of negotiations in the WTO. Today, however, this kind of blatant disregard for global consensus and the needs of developing regions poses a threat to the world's prosperity, security and health.

ACTA would create unduly harsh legal standards that do not reflect contemporary principles of democratic government, free market exchange, or civil liberties. Even though the precise terms of ACTA remain undecided, the negotiants' preliminary documents reveal many troubling aspects of the proposed agreement.[6] For example, ACTA advocates intend to further criminalize non-commercial copyright and trademark infringements. They also aim to reinforce so-called “Digital Rights Management” (DRM) technologies that currently prevent the personal, legal reproduction of optical discs like DVDs and trample on “fair use” rights. In addition, rights owner lobby groups want the agreement to undermine legal safeguards that protect Internet Service Providers (ISPs) from liability for the actions of their subscribers. It would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process...

ACTA would require signatories to undertake an unprecedented expansion of customs and law enforcement officials' abilities to police goods and information.[9] It would also create a dispute settlement system outside of existing multilateral institutions such as the WTO Tribunal or TRIPS Council to enforce these new powers. Rather than promote cooperation, ACTA signatories would seek to impose a one-sided vision of the knowledge-based economy on the rest of the world. They do so with no regard for the costs of their actions.

In the absence of widespread support for their position, the states behind the ACTA proposals have restricted participation to those organizations that already share their views... Much recent research in economics, law, sociology, business, and political science examine the claim that strict IP-rights regimes promote growth, innovation, and well-being.[10] Several of these empirical studies suggest that alternative regulatory and enforcement practices allocate public goods more efficiently.[11] Of course, other studies contradict the claims of these authors. The point, however, is precisely that such disagreement exists; the prospective ACTA signatories appear to have ignored any findings that do not reflect their ideological agenda."

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