I have been hearing a lot lately about ACTA, a treaty which is being drafted at the behest of a handful of old economy monopolies. IPJustice has a useful anaylsis. ACTA is an accroym for Anti-Counterfeiting Trade Agreement. Who could be against measures to prevent counterfieting? No doubt the name was chosen for exactly that reason, to imply that anyone who wishes to debate the provisions or even the necessity for the agreement. Its also sold as a trade agreement, which in some of the countries taking part in negociations means that executive sign-off is suffecient to bind that country, and the treaty need not pass scrutiny by the legislature.
Its concieved as a treaty amoungst a select club of countries. It ignores the World Trade Organisation which was created from the General Agreement on Trade (originated by the United States), in order to deal with trade issues. It ignores the World Intellectual Property Organisation, the organisation which exists for the global governance of intellectual property. Instead it seeks to bypass these representative fora, and create a non-negotiable text. When the terms are set, then developing countries will have to comply if they wish to trade with club members.
Opaque decision making, trade pressure, forum shopping, these are all distressing aspects of ACTA. I would like to examine something else though, what this indicates about the small but powerful club of old economy content companies who spawned ACTA.
It suggests that the failure of all the attempts over the last 12 years to use law to prop up failling business models has somehow not been understood, or accepted.
It suggests that the processes to reform intellectual propert, such as the WIPO Development Agenda, adopted by the WIPO in September 2007 have been dramatically misunderstood.
It confronts those of us who have argued that intellectual property law can be reformed with the realisation perhaps reform is simply not possible. Perhaps the mere possibility of monopoly rents creates a political economy in which issues such as balance, appropriate incentives, the public domain are reduced to meaningless concepts.
It seems that the free trade theorists are right, that any government sanctioned monopoly creates perverse incentives, creates opportunities for extra-ordinary profits if government processes can be influenced. Is the only way to escape these influences to abolish copyright, patent and trademark altogether? For some time now those who argued that intellectual property can be rebalanced have been able to point to the growing global realisation that for the global intellectual system to attain credibility it is necessary to re-introduce balance into the system. Despute TRIPS, TRIPS + FTA’s, attempts to foist software patents on Europe, and unecesary Broadcast treaties on everyone, it was possible to argue that IP can be reformed. Parrallel with these developments has been a growing global awareness that the ways in which innovation and creation take place in the digital world are radically different to the ways in which they take place in the analogue world. There has been an increasing understanding the business models must change accordingly.
Millions died due to HIV-AIDS, before compulsory licensing, or the threat of compulsory licences brought them medicines. It became increasingly obvious that
ACTA shows that despite all of these signs that change is necessary there remains a determination to extract ever increaisng monopoly rents at all costs, at the cost of the global trading system, at the cost of destroying all possibility of intellectual property reform, at the cost of development for billions of people, at the cost of civil liberties, at the cost of human lives.
The abolitionists can point to ACTA as evidence that the global intellectual property system is not, and is not intended to be, a balanced system, a system in which limited exclusive rights are granted to creators and inventors (remember them?) as an incentive to create and innovate. Instead industry lobbies can commandeer trade policy.
The abolitionists can point to the corrosive nature of IP in which every attempt.
ACTA may well prove to be the decisive event at which abolitionists begin to be heard more than reformers. Rent seekers may secure ever more draconian measures over the short term. A new generation in both the developed and developing world will have none of it. If reform, genuine reform is not begun now, the is likely that intellectual property will not be reformed, it will be abolished.
ACTA may well prove to be the decisive step which leads to the abolition of IP.