The anti-counterfeiting trade agreement: the ethical analysis of a failure, and its lessons
The anti-counterfeiting trade agreement (ACTA) was originally meant to harmonise and enforce intellectual property rights (IPR) provisions in existing trade agreements within a wider group of countries. This was commendable in itself, so ACTA’s failure was all the more disappointing. In this article, I wish to contribute to the post-ACTA debate by proposing a specific analysis of the ethical reasons why ACTA failed, and what we can learn from them. I argue that five kinds of objections—namely, secret negotiations, lack of consultation, vagueness of formulation, negotiations outside any international body, and the creation of a new governing body outside already existing forums—had only indirect ethical implications. This takes nothing away from their seriousness but it does make them less compelling, because agreements should be evaluated, ethically, for what they are, rather than for the alleged reasons why they are being proposed. I then argue that ACTA would have caused three ethical problems: an excessive and misplaced kind of responsibility, a radical decrease in freedom of expression, and a severe reduction in information privacy. I conclude by indicating three lessons that can help us in shaping a potential ACTA 2.0. First, we should acknowledge the increasingly vital importance of the framework of implicit expectations, attitudes, and practices that can facilitate and promote morally good decisions and actions. ACTA failed to perceive that it would have undermined the very framework that it was supposed to foster, namely one promoting some of the best and most successful aspects of our information society. Second, we should realise that, in advanced information societies, any regulation affecting how people deal with information is now bound to influence the whole ‘onlife’ habitat within which they live. So enforcing IPR becomes an environmental problem. Third, since legal documents, such as ACTA, emerge from within the infosphere that they affect, we should apply to the process itself, which one day may lead to a post-ACTA treaty, the very framework and ethical values that we would like to see promoted by it.
KeywordsACTA Anti-counterfeiting trade agreement Infraethics Intellectual property rights Information ethics
I would like to thank Hosuk Lee-Makiyama for some extremely enlightening conversations about trade agreements and IPR and several comments on a draft of this paper that saved me from some embarrassing one-sided remarks. He made me realise that more and better work needed to be done on the ethical problems undermining ACTA. Juan Carlos De Martin, Massimo Durante, Mireille Hildebrandt, Daniel Nagel, and Ugo Pagallo commented on the penultimate draft of this article and I am hugely indebted to their scholarship. If the article is much better than it was it is only thanks to them. Penny Driscoll skilfully copyedited and prepared the final version. An earlier draft of this article appeared in ECIPE Occasional Papers No. 4/2012 and I am grateful to Mr Lee-Makiyama for his kind permission to revise and publish that communication.
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