The ongoing discussion about ACTA is one of the most important political negotiations at this time. Its potential implications are far-reaching – both for what it intends and what it does not intend to do. That is, ACTA is crucial both because it aims to enforce existing intellectual property law, and because it does not aim to create any new law…
I was lucky to be invited to Brussels last week – along with several bloggers, journalists and a colourful selection of PASOK party members – for a briefing and discussion on ACTA, by MEP Mr Stavros Lambrinidis. Just before the ACTA issue disintegrated into the volcano nightmare, we had the opportunity to discuss it with Mr Lambrinidis and MEP Ms Françoise Castex, who, along with MEP Mr Alexander Alvaro and MEP Ms Zuzana Roithova, had brought the issue of the secret negotiations on ACTA to prominence by the Written Declaration 12/2010, demanding that the ACTA text under negotiation is made public.
Indeed, it was made public two days ago, and the four MEPs issued a Press Release, stating that “the decision to release a draft document of the Anti-Counterfeit Trade Agreement is, above all, a belated act of common sense from the side of the negotiating parties. For the last 2 years, the future of internet as we know it has been negotiated behind closed doors, without the least care for public scrutiny. This is now changing. The European Parliament, with Written Declaration 12/2010 and its relevant resolution of 8 March 2010, sided with the coordinated efforts of civil society, academics, and citizens around the world to make all documents concerning the ACTA negotiations public. The document that is now available proves that political institutions, when asserting their rights, matter. But this is by no means a finished battle. What still needs to be clarified among other is the ‘intermediary liability’ of service providers because it could induce restrictions of internet access without prior judicial due process. Now that the transparency is being finally achieved, the debate on the substance of these very important issues must begin in earnest among all concerned citizens and Institutions. In any case, the European Parliament will protect online and offline EU citizens fundamental freedoms.”
Although ACTA has a pretty broad scope, much of the discussion I was exposed to focuses on the issue of individual rights, particularly privacy, in the face of the possibility that, as the MEPs put it, there could be “restrictions of internet access without prior judicial due process”. I find it quite easy to accept that this is indeed the liberal argument. That is precisely why I find it a little disturbing.
As usual, the focus on the issue of privacy leaves the wider issue of how this whole discussion is structured quite untouched. To be fair, MEP Ms Castex did speak, during our discussion, about a need to redefine copyright law. But I fear that this need will mostly be dealt with in terms of new ways to pay for content on the internet – as was explicitly said by MEP Ms Catherine Trautmann, during a live broadcast on ACTA by the Group of the Progressive Alliance of Socialists & Democrats in the European Parliament.
The problem is that the liberal argument posits the individual right to privacy against the urgency of the cultural industry to safeguard its lost revenue, thereby acknowledging that the existing framework of the discussion on intellectual property is in principle sound and the demand of the cultural industry in principle legitimate, and therefore basically proclaiming only the necessity for more specific ‘techniques’ of isolating infringers and paying the industry its dues. The switch of fundamental issues to issues of ‘technical adjustment’ is one of the major ills in dominant liberal-democratic discourse, and I can only hope against hope that what was articulated as a need to redefine copyright law indeed becomes that and not a simplistic effort to protect ‘individual rights’.
In order not to be misunderstood, I have nothing against rights as such, but I do have a problem with where this discussion seems to be going. To me, the issue is not how to make everyone pay for everything they download, while avoiding that they will be monitored by ISPs without a warrant. Although these are serious matters – and I am naturally even more against any possibility of transferring law enforcement responsibilities to ISPs –, I believe that the issue is the wider comprehension of intellectual property in contemporary times and the relation it bears to cultural production.
During the discussion with Ms Castex, there were repeated references made to the rights of the industry and the artists. As far as the industry goes, there have been many rebuttals to its claim that it is losing a fortune through illegal downloading. The most obvious counter-argument, also repeatedly used by Mr Lambrinidis, is that there is no way to maintain that if those who download content could not freely do so, then they would actually buy it. So, it is impossible to calculate lost revenue, though in all likelihood, it would be much less than the industry wants us to believe. Perhaps, however, there is an even more basic argument, as I have been reading recently, that piracy is after all not killing the music industry – a strange conclusion, given the fact that what most of the negotiating parties seem to accept is that enforcement of the law that protects revenue is the main objective.
What is even more important, though, is that these two things, industry and artists, cannot seem to be perceived as one and the same. This is not an accurate description – and not just because many artists may claim a political distance from the industry. This is not an accurate description simply because, while there may be a totality of actions and claims that would allow us to refer to their subjects as the ‘industry’, there is no equivalent for artists; there is no way – or there shouldn’t be – to conceive of Madonna, Olaf Nicolai, Ilios and Into the Pill, as the same ‘subject’. So, one should perhaps be apprehensive when the ‘rights’ of industry and artists are grouped together – not because some artists’ ‘rights’ do not coincide with the industry’s, but because they do not coincide with the ‘rights’ of other artists.
I realise that, once again, my thoughts may seem off-topic to a lot of people, but let me make a point rather bluntly: ACTA is not a rethinking of intellectual property. It is a rethinking of the effectiveness of enforcement within the existing intellectual property framework. By focusing on the issue of ‘individual rights’, and by confusing the positions of industry and artists, the progressive forces of Europe risk missing a good opportunity to rethink intellectual property at its core: cultural production has to a large degree been a process of appropriation in the last decades. The right of artists to be paid for their work notwithstanding, what should be protected is a cultural landscape that de facto functions with a lot looser intellectual property rules than the industry would hope.
