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
- ACTA Anti-Counterfeiting Trade Agreement. (2011). Tokyo, 1 October 2011. http://en.wikisource.org/wiki/Anti-Counterfeiting_Trade_Agreement.
- Baker, B. K. (2011). Acta-risks of third-party enforcement for access to medicines. American University International Law Review, 26, 579.Google Scholar
- Bjelopera, J. P., & Finklea, K. M. (2012). Organized crime: An evolving challenge for US law enforcement, congressional research service. http://www.fas.org/sgp/crs/misc/R41547.pdf.
- Bridy, A. (2012). Copyright policymaking as procedural democratic process: A discourse-theoretic perspective on acta, sopa, and pipa. Cardozo Arts & Entertainment Law Journal, 30(2), 152–164.Google Scholar
- Ellis, R. (2011). Conflicts at the intersection of acta & human rights: How the Anti-counterfeiting trade agreement violates the right to take part in cultural life. Intellectual Property Brief, 2(3), 64–71.Google Scholar
- EU. (2009). European Union’s comments to the Us proposal special requirements related to the enforcement of intellectual property rights in the digitalenvironment. http://blog.die-linke.de/digitalelinke/wp-content/uploads/674b-09.pdf.
- Floridi, L. (2014). The Fourth Revolution - How the infosphere is reshaping human reality. Oxford: Oxford University Press.Google Scholar
- Floridi, L. (forthcoming). Toleration and the design of norms. Science and Engineering Ethics.Google Scholar
- Geiger, C. (2013). The anti-counterfeiting trade agreement (Acta) and beyond: Towards a differentiated approach to criminal enforcement of intellectual property rights at global level. Geneva: International Centre for Trade and Sustainable Development (ICTSD).Google Scholar
- Kroes, N. (2012). Copyright and innovation in the creative industries. The 2012 intellectual property and innovation summit, The Lisbon Council Brussels, 10 September 2012, Speech/12/592. http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/12/592&format=HTML&aged=0&language=EN&guiLanguage=en.
- Letter to President Barack Obama. (2010). Over 75 Law Profs Call for Halt of Acta. http://www.wcl.american.edu/pijip/go/blog-post/over-75-law-profs-call-for-halt-of-acta.
- Levine, D. S. (2012). Bring in the nerds: Secrecy, national security and the creation of international intellectual property law. Cardozo Arts & Entertainment Law Journal, 30(2), 105–152.Google Scholar
- The Pew Forum (2008), United States religious landscape survey 2008. http://religions.pewforum.org/pdf/report-religious-landscape-study-full.pdf.
- Weber, M. (2011). The protestant ethic and the spirit of capitalism. New York: Oxford University Press.Google Scholar