The Unsettling Trend of Forum Shifting in International Intellectual Property
During the second Global Congress on Intellectual Property last week in Rio de Janeiro, one of the major debate topics was how international trade agreements are driving the expansion of maximalist intellectual property laws and enforcement around the world. EFF was there presenting and discussing some of our main concerns.
The Internet has taught us a lot over the years: not only about cats and their skills in performing amazing tricks, but also about how our choices to adopt and fight for open content and open infrastructure affect our digital civil liberties. One thing that we have been repeatedly reminded of this year is that the Internet itself is not necessarily an agent for positive and open outcomes. It can be perverted through surveillance, through intermediaries, and especially through short-minded policymaking.
If we want an Internet that advances flow of information, access to knowledge, freedom of expression, and spurs innovation, we’re going to have to fight for it. As the Human Rights Declaration reminds us, everyone has the right to freedom of opinion and expression. This right includes the freedom to hold opinions without interference, and to seek, receive, and impart information and ideas through any media, regardless of state boundaries. However, if we take such freedom for granted, even in obscure trade agreements, we may allow those agreements to impede technological innovation and other areas of public progress.
TRIPS, or the Agreement on Trade Related Aspects of Intellectual Property Rights, was the first international agreement to consider intellectual property as a matter of trade. Many in civil society and developing countries had hoped that it would turn out to be the end of multinational companies’ plans for the globalization of intellectual property rights and high standards of enforcement. But it wasn’t.
During the 1980s and 1990s, there was an exponential increase in the number of bilateral trade and financial international agreements with intellectual property provisions1. More recently, there has been a rise in plurilateral or multi-national agreements, all of which undermine TRIPs, as well as multilateral negotiations within the World Intellectual Property Organization (WIPO)  , and established dispute settlement processes such as those within the World Trade Organization (WTO).
Local trade agreements are interconnected among hub-and-spoke systems, creating networks that transmit IP provisions across agreements, and eventually from one domestic IP regime to another. It’s a harmful network effect. That is the danger with ACTA, and it is the same threat posed by the Trans-Pacific Partnership agreement (TPP), the Comprehensive Economic and Trade Agreement (CETA) and the recently announced Transatlantic Partnership Agreement (TAPA). These are an end run around democratic systems.
Fortunately, the fact that they are so readily shifting policy forums is a sign that civil society groups are gaining ground—whether or not they continue to exclude us from the negotiation room. The problem continues to be that we are wildly outspent by private industries, which therefore can control the debate over IP regulation to whatever they claim serves the best public interest. As hard as it may seem to fight something like the TPP, our victories over ACTA in Europe and SOPA and PIPA in the US, we can always remind ourselves that even a small, active group in civil society can overcome bad policy in closed forums.
- 1. WTO, Staff Working Paper ERSD-2012-21, available at https://www.wto.org/english/res_e/reser_e/wpaps_e.htm