Published
The Post-ACTA Debate: An Ethical Analysis of its Failure
Research Areas: Innovation, IP, and Human Capital
By Jasper De Meyer (Intern at ECIPE)
Why would ECIPE decide to join in on the controversial ACTA debate four months after the European Parliament overwhelmingly voted against it? Introducing the ECIPE seminar on Oct 17th, ECIPE director Hosuk Lee-Makiyama explains: “the debate running up to ACTA was driven by hyperboles on both sides, without proportionality and reason.” As the first trade agreement to be rejected under the new powers granted by the Lisbon Treaty, it is of the utmost importance to understand why the debate failed and what lessons can be drawn from it to encourage a constructive post-ACTA debate on the future of the internet.
Three weeks ago, Professor Luciano Floridi, UNESCO chairman on Internet Ethics, presented his paper ‘ACTA – The Ethical Analysis of a Failure, and its Lessons’. The paper sought to answer the following questions: In what ways was ACTA successful? In what ways was it a mistake? But perhaps most importantly of all: Why did it fail and what lessons can be learned?
From the perspective of ethics, Prof. Floridi began his analysis by outlining the clear ethical merits of ACTA – property rights are consistently breached on a worldwide basis and infringements detrimentally affect its creators, as well as the incentives they face to innovate. While Prof. Floridi has no qualms with the commendable – even ethical – ends the agreement sought, he outlined that it is the means by which ratification was pursued that hindered its eventual enactment. The first lesson Prof. Floridi offered is that the secretive nature of the negotiations, while not inherently unethical, still hampered its ratification as it provoked resistance.
Furthermore, the agreement would have misplaced excessive responsibility on various online service providers who in the end should not be responsible for the transgressions committed by their users – Prof. Floridi argued that ISPs can and should help fight piracy, but that they ultimately are the “wrong [agents] to charge with the ethical responsibility of and legal liability of ensuring that IPRs are respected.” Current legislation favors limited indemnity as long as internet middle-men remove their illegal content once notified by a third party. Critics argue that ACTA would have reversed this accommodation, and made intermediaries liable for the content uploaded by its users. Such measures would probably have been impractical and costly, especially for publishers and web sites whose systems automatically produce content with little to no human supervision.
Several former negotiators of ACTA were present in the audience, who concurred that ACTA most likely stretched the boundaries for a trade agreement. Whereas trade negotiators saw ACTA as “a mere enforcement of existing commitments under the WTO TRIPS agreement” – civil society, unfamiliar with the intricacies of trade law or international treaties “saw a potential threat to human rights.” Those latter claims were generally over-stated though, as ACTA explicitly called for an implementation that would have reserved “fundamental principles such as freedom of expression, fair process, and privacy.”
Now that some time has passed, people are finally climbing out of their respective trenches. Rights-owner groups are acknowledging their mistakes while even the most hard-bent critics of ACTA in the European Parliament are tentatively accepting that there may be “1% of good behind ACTA”. Is reconciliation possible between the two opposing camps? Only time will tell. In the meantime, ACTA will come into force amongst the other signatories of democratic developed economies. They are also expected to review and develop new provisions in 2013 – many of these revisions are expected to be provisions that the EU blocked in previous negotiations.
What Floridi’s analysis did not cover is why and whether copyright and patent laws are moral at all. But it is imprudent if not wrong to simply assume they are.
The only reason to restrict the flow of informational-goods — i.e. those covered by copyright/patent — is the pragmatic economic one of incentivising production. This is because these laws are not about normal property but about non-rival goods: goods that can unlimitedly add value at essentially no cost. Restricting free use of such an abundance makes no moral sense in itself.
That means the moral strength of these laws is entirely provisional on particular evidence supporting that economic reason. Is the public overall better off from more incentivised production, despite bearing the burden of implementing and obeying restrictions on copying etc.? This cannot be determined a priori, we must look for actual evidence.
Yet good, clear, particular evidence is notably absent.
ACTA was unsupported by any kind of respectable case that the public would benefit overall. And that is what made it entirely illegitimate: not because of how it was pursued, or how it would be implemented, but because its fundamental justification was not there.
So should critics of ACTA accept “that there may be 1% of good behind” it? Unless any proposed law is proven with solid evidence, no, it should be rejected — along with any assumed moral notion of ‘infringement’.
True Value Solar is Australia’s largest solar specialist, committed in providing high quality solar power systems at a low cost.