ACTA - why are we concerned?
07 Apr 2010
This weekend, InternetNZ is hosting PublicACTA, an event that will allow public scrutiny and critical analysis of the Anti-Counterfeiting Trade Agreement currently under negotiation (the next round is being held in Wellington next week).
Why are we hosting the event, and why does it matter to you?
ACTA has morphed from a treaty about counterfeiting (a legitimate concern of governments, given the consumer safety issues and real economic costs it causes) to a treaty about how to bring about the tougher enforcement of copyright and trademark laws online.
You may shrug: "Enforcement? That's fine - the rights in the law won't change, will they?" - that is what the government officials close to the negotiations are saying.
Problem is, it is wrong. (continues over the break)
When you enforce an existing law more stringently, your substantive rights change. Imagine if the police charged everyone who jay-walked on busy city streets, as an example. Or a more relevant example: a tightening of regulations around peer to peer file sharing will probably materially change people's behaviour.
There is a bigger concern. The negotiations are proceeding on the basis that the emergence of the Internet and some of the tools it allows people to use has weakened controls that content creators or rights holders enjoy over their material, and that this weaker control is not in the public interest. Rights holders -- and governments -- are arguing that we need to toughen up the enforcement of existing rights to protect the innovation and economic development opportunities that copyright and trademark laws help to generate.
It's a seemingly logical argument until you look at it closely.
The purpose of laws like copyright is to improve the supply of creative works, inventions and so on: to get more of them in order to benefit the community. As such these laws balance some limited economic rights for creators of new material, with the public interest in using that material to spur further innovation and development.
In an objective sense, you could only justify moves to strengthen the enforcement of copyright law if you could show that the supply of copyright material was diminishing, and that strengthening the enforcement of such laws would lead to an improvement in that supply.
All the evidence available (summarised nicely here in a filing by a US coalition in favour of users' rights, and argued well here in a paper for the Harvard Business School) seems to point in the opposite direction. That is, the supply of most copyright works is increasing over the period where fast Internet access has led to greater levels of potential infringement of copyright. The turnover of those industries has continued to grow. Investment has continued to flourish.
So -- if there is no problem to fix, why are we trying to fix it? The simple answer is probably the right one. Content industries don't like losing revenue from obsolete channels to market (think declining music CD sales). Like almost every other industry, they have been confronted by the new online environment and left with the choice of innovating and finding new ways to make money, or being left behind.
When you have a well organised industry with big economic interests at stake, it stands to reason that they will fight to protect what they've got. And compared with the movie and music industries, those of us who are advocating the interests of the public are fighting an uphill battle.
In essence, ACTA matters because there is no evidence to back up its approach to toughening the enforcement of intellectual property laws. And like all trade treaties, it is being negotiated behind closed doors. PublicACTA is a chance to put it under the spotlight, to learn more about the agreement, and to have a say in an alternative, citizen-friendly approach to these issues.