January 28, 2010 | By Danny O'Brien

Blogging ACTA Across The Globe: The View from France

Today is day three of the seventh round of ACTA negotiations, currently taking place in Guadalajara, Mexico.

La Quadrature Du Net is a French advocacy group formed to promote digital rights and online freedom. Its name comes by analogy between the unsolvable mathematical problem of "squaring the circle", and similarly impossible attempts to "effectively control the flow of information in the digital age by the law and the technology without harming public freedoms, and damaging economic and social development". In our ongoing series of perspectives on ACTA from around the globe, today Jérémie Zimmermann and Félix Tréguer of La Quadrature du Net describe how the trade agreement undermines democratic challenges to IP policies in France and beyond.

ACTA: An agreement between lobbyists who hate democracy

For the past fifteen years, with the advent of the networked society, we have seen a growing confrontation between rightsholders, whose business-models rely on the control of culture, and ordinary citizens. Recently, a new battle has emerged, as a growing number of policy-making arenas consider implementing "three-strikes" schemes and Net filtering practices to deter filesharing.

In these important debates, citizens and public-interest groups have scored a few successes, convincing lawmakers that such proposals are at their core irreconciliable with fundamental rights and freedoms. Our own victories include amendment 138 in the Telecoms Package by the European Parliament &mdash which provided that no restriction on users' access to the Internet could be imposed without a judicial decision —, and the groundbreaking first decision of the French Constitutional Council on HADOPI, stating that the French Declaration of the Rights of Man implied the "freedom to access [public online communication] services". 1.

However, in the face of such opposition in traditional democratic forums, rightstholder lobbyists 2 have pushed for a global agreement that would establish extremist IP enforcement standards to all signatory countries.

As a result of this effort, ACTA is being negotiated outside of the traditional and relatively transparent IPR policy-making arenas, such as the WTO or WIPO. As made clear by a leaked summary of the draft Internet chapter of ACTA written by the Commission, this multilateral agreement could impose three-strikes schemes and Internet filtering practices:

To benefit from safe-harbours, ISPs need to put in place policies to deter unauthorised storage and transmission of IP infringing content (ex: clauses in customers' contracts allowing, inter alia, a graduated response).

This policy laundering endeavor on the part of the EU, the US and their home-grown IPR lobbies needs to be strongly opposed. Since the adoption of the TRIPS agreement in 1994, other countries have been compelled to implement increasingly harsher IP regimes. Bit by bit, the already shaky balance found in TRIPS between rightsholders and users of informational goods is neutralized at the expense of the latter.

The EU and the US have put an increasing pressure on countries such as Canada or Brazil - who understand the value of flexible copyright and patent laws for fostering free speech and democracy, social justice and development3. Through bilateral and multilateral agreements, international trade law is aligning with the most maximalist IP regimes that benefit only a few corporations located in the richest countries4. Even worse is the fact that such trade agreements are debated out of way of public scrutiny (although they significantly impact domestic law and go way beyond tariff regulations). Through undemocratic means, the development of an inclusive knowledge society is undermined.

But with copyright and patent law, more is not always better5 - especially for developing countries. This trend must be stopped. The ongoing negotiations on ACTA must be made transparent. Once these extremist IP enforcement measures are debated democratically, it will become clear that they do not rest on a principled basis and that they do not foster socio-economic progress. It is up to citizens and public-interest groups all around the world to act so that this fundamental debate can occur.

  • 1. The Constitutional Council stated that: "Article 11 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims : "The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may thus speak, write and publish freely, except when such freedom is misused in cases determined by Law". In the current state of the means of communication and given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions, this right implies freedom to access such services. The full decision is available in PDF.
  • 2. Besides entertainment companies, the IP lobbyists fighting for ACTA also include the pharmaceutical and bioengineering industries. The list of the people in the U.S industry who have been granted access to the draft ACTA is available on KEI's website.
  • 3. See, on this topic, Yochai Benkler, "The Wealth of Networks". Yale Press, 2006. See, especially chapter 9, "Justice and Development"
  • 4. For recent examples regarding EU's trade relations, see the the EU-South Korea Free Trade Agreement and the EU-Canada Comprehensive Economic and Trade Agreement (CETA).
  • 5. See, for example, Josh Lerner, "Patent Protection and Innovation Over 150 Years". Working paper no. 8977, National Bureau of Economic Research, Cambridge, USA, 2002. Josh Lerner studied changes in intellectual property law in sixty countries over a period of 150 years. He found that when patent law was strengthened, investment in innovation for local firms slightly decreased.

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