As protests against the Anti-Counterfeiting Trade Agreement (ACTA) sweep across Europe, two conclusions are possible: the era of closed-door IP policy is over; and the content industry's insatiable quest for more power and control is no longer irresistible.
A netroots uprising that began in January as a reaction against the Stop Online Piracy Act (SOPA) -- a poorly conceived and poorly vetted anti-piracy proposal -- has now snowballed into an Internet Spring against any backroom dealing with Hollywood. The lesson that must be learned is that intellectual property policy, particularly as it regulates the Internet, can no longer be crafted with only the content industry in the room.
Internet users realized during the debate over SOPA and its companion bill, PIPA, that because they were not at the table, they were on the menu. Vowing 'never again,' they have thus set their sights on ACTA, which is now being SOPAfied beneath a wave of indignant outrage.
In light of the demonstrations, countries including Germany, Slovakia, the Czech Republic, Latvia, and Poland are saying they will no longer ratify the Anti-Counterfeiting Trade Agreement, which was negotiated under the Bush administration, finalized under Obama's and signed by numerous nations -- including the United States, in October.
Unlike SOPA, however, which reveled in its own ham-handedness, ACTA is a more complex creature. Defenders of ACTA say the hostility toward ACTA is unfounded, since it is not the same as SOPA.
Yet ACTA defenders overlook certain shared traits between SOPA and ACTA. Both adopted an enforcement-only view toward fixing our outdated IP system, and both seem to elevate IP rights to be of paramount importance over all other rights and principles. Both were crafted under the belief that merely by beating infringers with an ever-larger stick, policymakers could cause new business models for monetizing content to magically spring into being. In addition, defenders of ACTA do not acknowledge that like SOPA and PIPA it was procedurally bankrupt in attempting to govern the public through an agreement that had been crafted in secret by special interests
But critics of ACTA also should acknowledge that as the trade agreement initially came under pressure, governments undertook to consult and establish some transparency. This limited transparency eventually allowed input from other stakeholders in the public, and eliminated some of the worst SOPA-type risks to the Internet from the earlier drafts of ACTA.
ACTA is a flawed agreement and reflects a missed opportunity to encourage our trading partners to adopt balanced IP proposals that would open up export markets for U.S. Internet services. ACTA imposes U.S. copyright penalties, but lacks immensely important protections like fair use. Fair use enables many Internet services to operate, allows news organizations to show bits of a song, or bloggers to point out something in a movie or other protected work. Yet at the same time, ACTA differs from SOPA and PIPA in that it contained some positive language to ensure that copyright enforcement procedures avoided the creation of "barriers to legitimate activity online and preserved the fundamental principles of freedom of expression, fair process and privacy." Whether this language can be relied on to protect against the increasing demands of the content industry we don't know, but it was in response to concerns raised during negotiations by CCIA and others.
Whether these efforts toward more transparency absolved ACTA's original sin of secrecy, and whether the improvements to its text are enough to mollify all concerns is an open question that some nations may answer differently.
What is certain, however, is that the IP policy must now be crafted in an open, transparent process, where the Internet and its users are recognized as equally important stakeholders. It must serve the public interest and the needs of the many, rather than the preferences of a parochial few.
Global IP policies are under active international consideration in other fora, and must take this lesson to heart. The Trans-Pacific Partnership draft agreement, for example, will undergo further negotiations in Australia next month. As the Obama administration's proposed "21st century trade agreement," it presents an opportunity to promote international norms that can respond to the legitimate concerns of many stakeholders including content and the netroots.
TPP can and must be negotiated in a transparent process and become an agreement that supports innovation and Internet freedom.
It would do a disservice to all if that agreement were SOPAfied. Let's resolve to prevent that.