By Alexandre Bohas
Passage au crible n°22
After secret negotiations, the European Union, the United States and Japan, joined by a dozen of other states elaborated in April 2010 a treaty entitled ACTA (Anti-Counterfeiting Trade Agreement). The aim was to impose more restrictive norms in the field of intellectual property.
> Historical background
> Theoretical framework
> Analysis
> References
With the globalisation of economic-cultural exchanges and the rise of new information technologies, developed countries – strongly supported by transnational firms – have encouraged the international recognition of intellectual rights. Accordingly, the TRIPS agreement (Trade-Related Issues of Intellectual Property) was concluded in 1994 in the framework of the WTO (World Trade Organisation). It was then transposed in state-members’ legislations with the assistance of international organisations, advocacy networks and firms. However, this transposition generated strong reactions – in Brazil and South Africa – notably in the pharmaceutical sector about the AIDS treatment.
After 2007, while the United States encountered difficulties during the Doha Cycle, it led secret talks on the subjects of counterfeiting with the European Union, Switzerland and Japan joined by Australia, Canada, South Korea, Jordan, Morocco, Mexico, New Zealand and Singapore. In April 2010, the draft of the treaty has been finally released.
1. The legal and political structuration of capitalism.In a market economy, the capital accumulation lies in legal and political structures. Assisted by industrialised states, major corporations, owners of brand, copyrights and patents, have undertaken to widen and deepen their stranglehold in privatising more and more intellectual property goods. Whereas the latter are non-rival – their actual use not endangering future uses – firms wish to receive a fee per every purchase. In doing so, they « build scarcity » according to the phrase of Christopher May, and assure substantial income.
2. An unequal access to intellectual property governance. In a globalised world, this regulation mechanism is often regarded as respecting all the stakeholders. In this respect, it continues to nourish projects of cosmopolitan democracy on a global scale. Yet, this is not the case. To the contrary it confirms the domination of transnational firms and Western governments in a domain which involves civil society, consumers, and developing countries.
Described as a modest effort of customs coordination, ACTA marks actually a major turning point. It proposes firstly a reinforcement of cooperation in the matters of data-sharing on counterfeiting acts particularly perpetrated on the internet. In addition, it reinforces the 61 article of TRIPS since it criminalises non-commercial individual behaviour such as Peer-To-Peer activities. Fundamentally, it harmonises legislations according to a strong approach of intellectual property protection by generalising the harshest practices and doctrines put in place fragmentarily and partially in national legislations. Let’s note that its formulation remains particularly vague concerning its mandatory nature and its enforcing domains, which hides asymmetrical power struggles between states, firms and civil societies. Once signed then ratified, it will support in each nation proponents of an always higher intellectual property protection. The latter supporters now press Western governments to assure a lego-political structuration of the world economy which is likely to assure a situation rent and a long-term prosperity to intellectual property companies.
Dealing with controversial questions, stakeholders of ACTA wished to come with an agreement at the margins of the world scene. Yet, this way of doing goes against new power struggles, notably the determining presence of emerging powers such as the BRIC (Brazil, Russia, India, China) whose development implies the purchase and import of intellectual rights. For all that these countries have been excluded from talks while they have already provided important efforts in the domain of copyright and patent protection with TRIPS. This method of negotiation shows the wish to impose brutally international norms once they are already negotiated, which reduces all the more possible contestations. In the same logic, it reduces to silence governmental and non-governmental organisations which could have reacted and mobilised public opinions. In this sense, the internal logic belongs more to the « raison d’Etat » than the « raison du monde » notion that Philip Cerny coined.
Talks of the ACTA project belongs to a politics of fait accompli. In doing this, they contradict the world diffusion of political authority which characterized now international relations. In fact, the number of issue-areas to deal with as much as the dispersion of legitimacy oblige now international policymakers to take into account developing countries and non state actors, and in the framework of multilateralism to take decisions by consensus. Consequently it is not surprising that these procedures provoke hostile reactions from developing countries and civil societies.
Anti-Counterfeiting Trade Agreement. Public Predecisional/Deliberative Draft, April 2010, available on: http://trade.ec.europa.eu/doclib/docs/2010/april/tradoc_146029.pdf.
Bohas Alexandre, Disney. Un capitalisme mondial du rêve, Paris, L’Harmattan, 2010.
Cerny Philip G., Rethinking World Politics. A Theory of Transnational Pluralism, Oxford, Oxford University Press, 2010.
EFF, « Preliminary Analysis of the Officially Released ACTA Text », April 2010, available on: http://www.eff.org/deeplinks/2010/04/eff-analysis-officially-released-acta-text.
FFII, « Analysis Anti-Counterfeiting Trade Agreement », April 2010, available on: http://action.ffii.org/acta
/Analysis#Executive_Summary.
May Christopher, The Global Political Economy of Intellectual Property Rights: The New Enclosures, 2nd Ed., London, Routledge, 2010.
Sell Susan, Private Power, Public Law: The Globalization of Intellectual Property Rights, Cambridge, Cambridge University Press, 2003.
