ACTA Critics Oppose Strict IP Enforcement, Not Just Text of Agreement

As the ninth round of negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) comes to a conclusion and the White House has made clear its support for ACTA as part of its Joint Strategic Plan on Intellectual Property Enforcement, opponents of the initiative have become increasingly vocal. The critics range from those who fundamentally reject the idea of intellectual property rights, to those who worry about empowering private sector actors to enforce digital IP rights, to those who feel that their civil liberties and privacy are under attack. Most notably an international coalition of critics, led by vociferous anti-IP rights groups, has signed on to a public letter condemning ACTA as “hostile to the public interest.” While the most recent draft of ACTA may still need refinement, the overall results of the agreement would be greater protection for intellectual property rights, a direct benefit for American companies, American jobs, and American consumers.

ACTA traces its roots back to 2007 when various countries came together to begin negotiations on a plurilateral treaty to improve “global standards for the enforcement of intellectual property rights” and “to more effectively combat trade in counterfeit and pirated goods.” Current participants in the negotiations include Australia, Canada, the European Union, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States. The goal of ACTA is to better protect intellectual property rights by increasing international cooperation, establishing best practices for enforcement and ensuring a strong international legal framework to combat piracy.

One of the major objections to ACTA up to now has been about process rather than substance. Critics contend its negotiations have been conducted primarily behind closed doors. For example, critics recently labeled ACTA “the predictably deficient product of a deeply flawed process.” However, in their defense, the participants have reacted to calls for more transparency, albeit slowly. In April 2010 negotiators released draft text for public comment. More recently, during the most recent round of negotiations the Swiss government hosted meetings for outside participants to share their views on the initiative. Moreover, while the negotiations were conducted privately, many of the negotiating partners have provided opportunities for public comment. In the United States, for example, the USTR has provided opportunities for public comment and has provided updates about the ongoing negotiations. Similarly, the European Commission has organized at least one meeting this year to provide a forum for stakeholders to voice their views and concerns about ACTA.

To be fair, without absolute transparency or finalized text it is difficult for supporters or detractors to argue meaningfully about the finer points of the negotiation. However, what we have seen is a general assault on even reasonable efforts to protect IP and improve IP rights enforcement. For example, Public Knowledge has criticized ACTA as a backroom deal for content owners at the expense of innovation even though they acknowledge that substantive concerns about ACTA “are more speculative since they regard its content.” These groups see Big Media as the enemy out to destroy civil liberties and fair use, especially on the Internet.

Not surprisingly many of the groups opposing ACTA have generally been resistant if not “hostile” to any effort to improve IP enforcement online, such as prohibiting unauthorized circumvention of digital rights management controls. Similarly, these groups have opposed ideas such as content filtering or “three strikes” legislation to penalize repeat illegal file-sharers. Given that online service providers are often best placed to protect digital IP, policymakers are wise to pursue an agreement that incentivizes these service providers to combat piracy. Yet many of these groups oppose DMCA-like provisions which provide service providers with limited liability if they enact anti-piracy controls. These include groups like the Pirate Parties International which represents political parties created specifically to reduce or eliminate existing intellectual property rights. Similarly, groups such as the Electronic Frontier Foundation (EFF), which generally rejects most technology and policy-based measures to limit IP infringement, have actively opposed ACTA. For example, EFF argues that ACTA will “cut people off of the Internet, turn ISPs into copyright cops, and create a global framework that puts severe restrictions on innovation.” These are often the same critics that even object to statements, like the one from Vice-President Joe Biden, that “piracy is theft” and “piracy hurts our economy.”

The real opposition of these groups appears to be not to ACTA specifically, but to meaningful IP rights enforcement generally. Notably, many of the opponents of ACTA are not concerned that the initiative will be ineffective, but instead complain that the agreement will force countries to adopt stricter enforcement regimes for IP. Attempts to impose harsher penalties on copyright infringers are labeled as anti-innovation, and attempts to impose criminal sanctions on non-commercial infringement are deemed anti-consumer.

These points of view ignore the modern reality that what people create with their minds has value just as a piece of furniture or a painting or anything created with one’s hands does. As ITIF has argued repeatedly IP infringement costs the U.S. billions of dollars annually and the U.S. government needs to step up enforcement of individuals, organizations and nations that systematically steal, extort or otherwise gain U.S. IP without paying for it. More can and should be done to protect intellectual property, such as embracing anti-piracy measures online. There is no better way to stifle innovation than to devalue its worth and deny just compensation to creative and ingenious people.