6 Feb 2012

ACTA - Facts, Issues and Opinions

Sorry, got a little carried away there by the veil of the dark side cast by the Dark Lord itself, ACTA with my last post. The world has gotten a little copyright/piracy/freedom of speech crazy lately, what with all the SOPAs and PIPAs and ACTAs.
But let’s get serious for a moment, and talk a little about ACTA.

 What is ACTA?
Some call it the European SOPA – only it’s not SOPA. It’s not a law, it’s a trade agreement between a number of countries. The Anti-Counterfeiting Trade Agreement (ACTA - although counterfeiting is completely different in definition than what the bill aims to avoid) is a multilateral agreement which proposes international standards for enforcement of intellectual property rights. The reason this agreement is so controversial was that it was robbed of democratic credibility and clarity since it was negotiated behind closed doors, without public (aka voter) knowledge. It hasn’t been ratified yet, and final negotiations will take place during the summer of this year, but should it make it past that final deliberation, it would have serious implications for freedom of expression, access to culture, privacy, and have negative effects on trate, innovation, creativity and so forth. Let’s see why it’s so dangerous...

Issues with ACTA:
ACTA has bypassed established forums (WIPO and the WTO), by negotiating behind closed doors, leaving out most developing countries, with little democratic accountability at UN, EU or national level. Those established forums serve an important function: they ensure that agreements and legistlations are are based on democratic principles and openness; with clear procedural guarantees. Now, since ACTA has bypassed these institutions, it already casts a cloud of doubt over the honesty and purpose of its proposals.
In order to enforce potential standards set by the agreement, ACTA seeks to create a new institution out of an opaque process, called the “ACTA Committee”. The problem is that via its provisions, this committee will not operate openly or transparently, and will not be liable for public scrutiny. I will also be able to isssue amendments to ACTA itself after it is adopted, without public accountability. Plainly put, ACTA will create and give power to this board to enforce its stipulations, while also giving it the power to retroactively change the legal provisions and standards of the agreement at will.

To date, no party to ACTA has provided public access to the negotiating documents.
One of the biggest issues with ACTA is that it places the regulation of free speech in the hands of private companies, essentially saying that rightolder interests are more important than privacy or free speech – constitutional rights in all democratic countries! These compaies would impose obligations to third parties to police online content. These third parties are websites, ISP’s, etc: namely, entities that are not equipped to regulate online speech. ACTA pushes internet providers to carry out surveillance of their networks and disclose the personal information of alleged infringers to rightsholders. Not to mention the fact that the ambiguous wording of the agreement  would criminalise large numbers of citizens for trivial offences.

A lot of pressure would be put on these intermediaries. ACTA makes our Internet Providers responsible for what we do online, and turns them into a law enforcement and surveillance entity. This means increased liability for them, which in turn could result in ISP’s being wrongly incentivized to perform more rigurous and in-depth scrutiny into our online privacy, including monitoring our traffic via „deep packet inspections”. This is a gross violation of user privacy of course.
YES! You got it, your ISP will be obgliated to MONITOR your online activity like an intelligence agency tapping phones.

ACTA could also have a chilling effect on innovation and creativity. Think about it. So much innovation comes from legal „grey areas” (I’m thinking about software development, for instance), and this innovation could be discouraged because smaller businesses will fear extremely high financial penalties and criminal measures, especially in cases of unintentional copyright breaches. Small companies and especially start-ups will not have the ability to compete with larger corporations in cases of litigation. Fear and lack of financial resources would lead smaller businesses away from the creative scene. ACTA can also potentially encourage anti competitive-behavior, because smaller intermediaries (ISP’s, websites similar to YouTube etc) won’t have the ability to implement the policing standards, giving larger competitors a huge advantage.

The US would have better flexibility and the agreement would give it a competitive edge. Yes, ACTA could actually harm international trade rather than protect it. Even though the EU would consider ACTA a legally binding treaty, the United States has already made it clear that it sees ACTA as a non-binding “understanding” (you don’t have to be a legal expert to call bullshit). This could create problems of legal uncertainty regarding the status of ACTA and gives Americans a potentially significant edge in trade over Europeans.

All these issues with ACTA stem from its vague wording, which leaves a lot of room for interpretation. It does not define key items of the agreement, such as „commercial scale”, „digital environment”, „expeditious remedies” or „digital networks”.  This means that legislation enforcers have a lot of leg room when determining the scale of such an infringement, and they also have the same leg room in establishing  fines and other punitive measures. There is no bias, there is no system within the agreement to determine what is a „commercial scale” infringement – judging by the wording alone, even downloading one illegal song can be punished with the same diligence as commercially mass-producing counterfeit Adidas sweatshirts.

As a final note, ACTA fails to meet European standards on the protection and promotion of universality, integrity and openness of the internet as outlined by the Council of Europe, which has asserted that “States have the responsibility to ensure, in compliance with the standards recognised in international human rights law and with the principles of international law, that their actions do not have an adverse transboundary impact on access to and use of the Internet.” It’s not even aligned with current international trading standards, but rathe creates a parallel system which is more restrictive, punitive and potentially harmful.
Bottom line, it sets a nasty precedent. By setting vague guidelines regarding copyright infringement, it leaves the door open for individual countries to implement abusive legislation and allows corporations to have an unpredecented control over the flow of information online. It does not obligate any member nation to enforce anything at the moment, as it's just an agreement, a set of standards, but it threatens to endanger the most fundamental rights the internet has taken for granted so far. It must be stopped so that this precedent is not set. I believe a clear message must be sent: the internet is free and will not be restricted by any private interests. I want my internet to remain a bastion where freedom of speech is not policed. My concerns have nothing to do with piracy or copyright infringement, yet the side-effects this agreement would have threaten my privacy, my creativity, and the collective energy, freedom and creativity of the world wide web. It’s an entity that has no master, that needs no master, it is international yet of no nationality. You want ACTA or any other agreement to pass? Make it clear and explicit, negotiate it publicly and leave our privacy out of it.

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