The Leaked ACTA Documents: What Next?

I had originally intended my first post to be more introductory (PhD student in political science at Carleton University in Ottawa, writing a dissertation on implementation of the World Intellectual Property Organization Internet treaties in Canada, the U.S. and Mexico, former economist and reporter, currently working out of Mexico City trying to finish my dissertation so I can rejoin the workforce), but instead I’m going to jump right into what I hope will be regular postings related mainly to my academic work: copyright policy and North American regional integration. Comments always welcome.

I’ve been experiencing a bit of déjà vu reading Michael Geist’s recent postings on the leaked Anti-Counterfeiting Trade Agreement (ACTA) which, despite its name, seems to have at least as much to do with copyright as counterfeiting (Geist has a link to a leaked description of the parts of ACTA related to ISP liability and technological protection measures). The secret negotiations among a group of (mostly) developed nations attempting to set a global standard that goes far beyond the existing international treaties, the leaks that have sparked outrage among activist groups, the negotiations outside the subject’s traditional fora: what we have here is practically a repeat of the Multilateral Agreement on Investment (MAI: OECD page; Wikipedia) in the late 1990s.

As a pup reporter for a small Toronto-based Catholic social-justice newspaper (how’re those for some loaded labels?), I filed many a story on the opposition to the MAI, and I remember how activists claimed victory when it was shelved. For those of you who don’t recall the MAI, it was like the Battle of Seattle, only about global investment rules. Its defeat was seen as the first expression of what has come to be called global civil society.

For those concerned with the potentially harmful effects of an ACTA, which could include a three-strikes rule for repeat copyright infringers and a notice-and-takedown regime for ISPs, there are some important lessons to be learned from the MAI experience, the most obvious to me being:

Lesson #1: The negotiating forum matters. This is the big difference between the ACTA and the MAI. The MAI was negotiated under the aegis of the Organization for Economic Cooperation and Development. The OECD, and not the recently established WTO, was chosen as the negotiating body because it was felt that its limited, relatively homogenous membership (currently 30, mainly industrialized, countries) would make it easier to conclude an investment treaty. This treaty could then be presented to the rest of the world as a fait accompli without the bother of having to negotiate with countries whose interests may not be in sync with the richer OECD countries.

The one flaw in this plan was that the OECD was working under consensus rules: if one country objected, then the whole treaty would not proceed. Indeed, while activists can take a lot of the credit for the eventual demise of the MAI, it was actually the French government’s decision not to pursue the MAI that actually killed it but good.

The big question for ACTA opponents (and proponents, for that matter) is whether the talks are vulnerable to a country pulling a France before the end of negotiations next year. I don’t know the answer to that question, mainly because (what with the secrecy and all) the terms under which the treaty is being negotiated are not readily available. But it would seem that so long as the United States, Japan and the European Union are on board (the U.S. isn’t going anywhere; don’t know about Japan or the EU), it doesn’t matter if most other countries stay or go. If the United States can go into Iraq with Britain, Australia and Moldova as its main allies and call it a coalition, they could still negotiate a treaty with bit players and call it a new world standard.

So ACTA opponents will have to take into account the likely success of a treaty and plan accordingly. The basic strategy of the MAI protesters seems to remain valid here: international information coordination (the easy part) and domestic political pressure (the hard part). The real battle will probably take place country-by-country, first over whether to withdraw (Howard Knopf argues for walking away) and then over the treaty’s implementation.

While this likely will make the ACTA political debate different (and more difficult for opponents) than the MAI debate, the final outcome is not predetermined. Treaties can be modified before they are signed, and then they have to be implemented, and then enforced. As has been demonstrated by Canada’s inability to implement its obligations under the WIPO Internet treaties, and the U.S. refusal to implement the Kyoto Accord (which it signed), just because a country signs a treaty does not mean that it’s going to implement it.

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