Tuesday, November 17, 2009

ACTA: walk away or get on board?

On November 5th Michael Geist spoke at the American University in Washington about the ACTA. His presentation was part of a panel called "Strengthening IP Enforcement Through TRIPS and Other Multilateral Initiatives", with Daniel Gervais and Peter Yu and moderated by Padideh Ala'i (Webcast here).

Geist predicted that by 2010 ACTA will be fully drafted, that by 2011 it will be publicly disclosed, and that by 2012 efforts will have begun to expand the circle of countries to which ACTA applies. Countries excluded from ACTA will be presented with a fait accompli. They will have had no influence on the ACTA text. Nevertheless, they will eventually be asked to sign the document. Geist argues that, therefore, excluded countries should be banging down the door of ACTA, saying they want input now.

The question I raised at the discussion was whether, if more countries get on board with ACTA, it will not simply lend more legitimacy to the process taking place, and increase pressure on participants eventually to implement the agreement. In response, Geist argued that, on balance, the risks of not getting involved are too big.

In my historical research on Canadian international copyright I have seen the argument made on numerous occasions that Canada should participate in this or that international negotiation in order to be able to have some influence. This argument is made even in negotiations that are heading generally away from the direction in which Canada wants to go. It also seems to me that the influence ascertained through this method has been, on the whole, negligible. Also, once a country participates in and signs an agreement, the argument is then made (as with the WIPO Internet treaties) that the country therefore has some obligation to implement the agreement.

Nevertheless, Geist may be right.

Non-participation: considerations
  • With fewer participants, the ACTA could come to be seen as a regional or rich-country norm, rather than an agreement that all countries would eventually sign. However, there are not many examples of IP treaties that are seen as regional today; most are successfully globalized. At the same time, the WIPO Internet treaties are still adopted only by about 70 countries, less than half the membership of the Berne Convention; global adoption of any new treaty is not guaranteed.
  • If countries do not participate in ACTA's negotiation, they can later argue that they don't wish to implement an agreement that they had no say in. It seems likely that trade pressure would overcome this objection.
  • Countries that do not participate now could demand revision of the treaty at a later time as a condition of their joining. Canada successfully demanded revision of (via a protocol to) the Berne Convention in 1914 as a condition of its implementation of Berne, and the US was highly influential in revisions of Berne as an outsider, when members tried to accommodate US demands in an effort to (unsuccessfully until 1989) draw the US in.
  • Howard Knopf argues that Canada should be prepared to walk away from the treaty, and that if Canada continues to participate "the minimum price for so doing should be complete transparency and immediate publication of all draft texts, as has been the normal practice at the GATT, WTO, WIPO and elsewhere for decades."
Participation: considerations
  • The participation of Canada or other countries could have a beneficial impact on the treaty; for example, room for Canada's proposal of a notice-and-notice system could be brought into the treaty.
  • Like-minded countries could group together to have some influence on the treaty, mitigating its most unpalatable aspects
Not signing: considerations
  • Blayne Haggart, in a recent blog post about ACTA, points out that the French government killed the MAI by walking away from it. That doesn't mean that would happen here, he notes; a smaller group of countries could carry ACTA forward even if some parties walk away.
  • Countries could participate in the negotiation of ACTA but, in the end, refuse to sign the document. This would allow the country to have some influence throughout the negotiations and, if the ACTA remains unsatisfactory, to make a statement in this regard while also making it clear that, in the end, the country did not intend to implement the agreement. This was the strategy taken by the United States throughout the history of its refusal to sign the Berne Convention.


  1. It's very disturbing to me that the only people I see talking about ACTA are Canadians (That said, GO CANADA).

    I'm an American, and have participated in the horror of watching the RIAA/MPAA/Others work hard to preserve their monopolistic business model. It's sickening the lengths they've gone to, and most days I feel like I'm the only person who even sees what's going on. As Canadians, I encourage you all to keep fighting, keep your government yours, and don't let them tell you what you can and can't do.

    As American's we're screwed, ACTA is "National Security" and is an executive treaty, so no amount of yelling or screaming will keep it from being signed on our side. The only person who has to say "yes" is our illustrious president. So much for transparency.

  2. Thanks, also for the link to the webcast. Unfortunately it requires the Silverlight DRMing plug-in (see MIcrosoft's FAQ about Silverlight'sAudio, Video and Digital Rights Management (DRM)).

    Geist has provided a blip.tv DRM-less version of his speech, embedded with further info in his The ACTA Threat: My Talk on Everything You Need To Know About ACTA, But Didn't Know To Ask.

  3. Almansi, Geist's version refuses to open with the message:

    "A monitor program has been found running in your system. Please, unload it from memory and restart your program."


  4. Interesting that the MAI was mentioned. At that time there were many hundreds of thousands (maybe millions) of people actively opposing the agreement in nearly every country -- whether they were part of the negotiating countries or not. I was actively involved hosting/coordinating/etc via FLORA.org/mai-not/ along with a number of other colleges.

    We had conferences dedicated to the well published draft text, explaining to people less experienced with investment policy the type of outcomes expected (intended and unintended consequences). Sometimes it wasn't the text itself, but experience with how governments internally make decisions that was the issue (IE: being excessively risk averse, and not being able to make full use of any flexibility -- should sound familiar to you when it comes to copyright).

    It will be interesting to see if something similar will be possible with ACTA. I'm not convinced at this point. Some/many of the groups that were part of MAI-not have been duped into thinking that ACTA-style legislation is actually good for them (IE: groups self-identified on the left like unions, as well as those on the right).

    We still get stuck in conversations about alleged "theft" (Jefferson debate), as well as people who have no problem crippling technology or the Internet in order to theoretically (without any proof) protect once successful business models.