Internet Governance

The Anti-Counterfeiting Trade Agreement (ACTA): Lessons and Outcomes

Many claim that there are no coincidences – rather events, which, when tied together, they form logical conclusions. On this basis, the latest coincidence in the front of international intellectual property rule making is certainly worth exploring: at the time the future of the much-debated Anti-Counterfeiting Trade Agreement (ACTA) was being determined within Europe, a new round of negotiations concerning the Trans-Pacific Trade Agreement (TPPA) was taking place across the other side of the Atlantic. The common thread of both Agreements is their focus on intellectual property rights and their relevance to Internet technologies and platforms.

On July 4, 2012, the European Parliament – the directly elected parliamentary institution of the European Union (EU) –voted and rejected the ACTA text. ACTA was a piece of legislation that sought to protect the truly problematic issue of piracy and counterfeiting in the Internet, but sought to do that through a scheme that would place the open and distributive architecture of the Internet at risk, whilst at the same time sacrificing some basic civil and human liberties.

The rejection of ACTA has marked a new page in the history of international law making and it should not be taken lightly. It is perhaps the first time that lawmakers and legislators had to face the realities of the digital era and the role that digital technologies and, principally the Internet, can play within international institutional frameworks. Up until the rejection of ACTA, international law making was conducted under a presumption of trust – similar to the one that citizens place upon politicians in any representative democratic society. ACTA came to challenge this methodology. Because of its very close nexus with Internet technologies and its potential impact upon the open and generative architecture of the Internet, Internet users came to question the traditional methods of international law making that see public international law instruments (Treaties, Conventions, etc.) conducted and deliberated behind closed doors with the sole participation of governmental representatives. By taking on the streets, Internet users (mainly in Europe) instructed their governments that agreements, directly or indirectly, related to the Internet and its nature should become more inclusive and called for more transparency in international legal negotiations. Without fully realizing the impact of their actions, Internet users all over Europe became one voice and set a precedent for all future intergovernmental negotiations.

In essence, what the ACTA demonstrations did was to reaffirm the need to adhere to the fundamental principles of the World Summit on Information Society (WSIS) as enshrined in the Tunis Agenda, which in paragraph 68 states:

“[…] We also recognize the need for development of public policy by governments in consultation with all stakeholders”.[1]

It was really important, therefore, to see the European Parliament representatives paying attention to their citizens and overwhelmingly rejecting an Agreement that was done without the full participation of all Internet governance stakeholders – governments, the technical community, civil society, the private sector, content creators, Internet Service Providers (ISPs) and all other stakeholders with a vested interest in Internet matters.

And, whilst the Internet community had its eyes on the EU Parliament’s vote on ACTA, the governments of the Asia-Pacific region were meeting in San Diego, California to discuss another (regional) Treaty – the TPPA. Currently in its thirteenth (13th) round of negotiations, the TPPA consists of the governments of the United States, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore and Brunei Darussalam (Canada and Mexico are also invited), which are seeking to create a multilateral free trade agreement with the goal to further liberalize the economies of the Asia-Pacific region. Based on a leaked version of the text, the TPPA, aiming to become a “new, high-standard, 21st century trade agreement”,[2] appears to additionally include a chapter on intellectual property (IP) issues that could have a broad impact on users’ rights, the future of the Internet’s global infrastructure and innovation across the world.

It may be premature to ring the warning bells on the substance of the TPPA since no official text has been released, but commenting on the process of this Agreement is certainly not overdue. Despite the fact that a significant number of the TPPA participants have provided opportunities of participation to some stakeholders, there appears to have been limited scope for interactive discussions and direct contribution to the development of the text and it has become clear that stakeholders have not been allowed to actively participate in policy discussions for the proposed Agreement as is envisaged by the WSIS principles.

Similarly to the ACTA’s process, the TPPA participants have opted for the traditional methods of conducting trade negotiations – that is a classic diplomatic process behind closed doors. This is at odds with the open, transparent and inclusive multistakeholder approach to policy development processes the Internet community is committed to. Internet users expect transparency and would welcome the release of any text regarding the significant policy discussions that are taking place.

Deciding how to tackle intellectual property rights in the digital environment is both important and relevant to all stakeholders – not just governments. What is important to bear in mind is that the procedural limitations of ACTA should not be repeated and the Internet community should be allowed to join forces and share their expertise to address the pivotal issues surrounding the protection of intellectual property rights in the Internet. The ACTA experience should be used as a tool and precedent on the necessity for more robust and transparent processes for all future international law making. More inclusive discussions are required for all issues that affect Internet technologies and platforms, especially when considering that these discussions can set further precedents for mechanisms dealing with other Internet governance issues.

So, the logical conclusion of this coincidence is that the methods of conducting international agreements for issues relating to the Internet should adopt a true multistakeholder approach and be subject to inclusive discussions and debate.