Tuesday, May 27, 2008

An Offer Countries Can't Refuse

In the movie The Godfather, Marlon Brando, playing the Don, is approached on the day of his daughter's wedding by his godson Johhny Fontane, a singer who wants a movie role. The head of the studio won't give Fontane the role, so the Don to Johnny: "I'm gonna make him an offer he can't refuse." He does, and Johnny gets the part. A number of countries appear in danger of being offers they can't refuse too. One such offer is ACTA, the proposed Anti-Counterfeiting Trade Agreement. Wikileaks has provided a discussion paper on the agreement that was provided to selected (pro-ACTA) groups. See wiki story and links to documents here. (In a wonderful show of independence, Wikinews posted an entry alleging the Wikipedia Foundation Board was trying to censor their reporting on other issues; see here.).

The document provides few details, but it is the very lack of transparency that is a concern to me. The concern is centered on agreements being hashed out in private, among a small select group of believers, and then presented on what is in reality a take it or leave it basis. As IP Justice put is in their story on the issue:

After the multi-lateral treaty’s scope and priorities are negotiated by the few countries invited to participate in the early discussions, ACTA’s text will be “locked” and other countries who are later “invited” to sign-on to the pact will not be able to re-negotiate its terms. It is claimed that signing-on to the trade agreement will be "voluntary", but few countries will have the muscle to refuse an “invitation” to join, once the rules have been set by the select few conducting the negotiations.

The important issues raised by such an agreement should be subject to legislative hearings at the outset, in which all interests can participate, before the agreement is "locked." There are reports the agreement will be on the agenda July's meeting of G-8 nations in Tokyo; non G-8 countries, including Israel, should be put on notice that they too may soon receive an offer they can't refuse. But what about G-8 countries like Canada, which have been criticized by the United States government and by IIPA, and which is about to introduce copyright reform legislation? What happens if the current government signs on to ACTA in July? These are issues known only to the Canadian government, and as a non-Canadian, it is not my place to offer advice, but ACTA does introduce more complications into an already complicated situation and not only for Canada.


Ampersand said...

Isn't multilateral treaty making usually a matter of a few interested parties getting together the deal they think people ought to want, and marketing it to the less powerful and /or less engaged?

I thought the Berne Convention came about that way.

I'd like to hear of a model for negotiation and drafting of international accords that is truly bottom-up and democratic.

William Patry said...

Hi Vincent, the Berne Convention came about a totally different way. Sam Ricketson has a wonderful history of it, but in short, it arose from the efforts of writers. There were a number of very open, public conferences where people from around the world were invited.

Being democratic doesn't mean that the less powerful win, only that their voice can be heard before the decisions are made. ACTA is the opposite of this.

Anonymous said...

[to vincent] you can call it multilateral treaty making, but to me the entire matter smacks again of 'modern colonialism', which i see as the forceful imposition of the interests of laws and economic interests onto other struggling countries, by way of 'offers that they cannot refuse'. In this case, the 'al capone' type offer would presumably be the chance to have preferential trade relations as well as getting on the good side of the gathered developed G8 nations (Bill: on this note of gettng on someone's good side, do you think that countries who enter into this ACTA would be seen as having the same laws as the US, and thereby shield these countries from being struck with US special 301?).

But where this is the case, developed world interests would be imposed on the struggling country, subjugating it to a regime that is not anywhere near acceptable to its own citizens and industries but only favourable to incoming developed country imports. And with spectacular negative results on domestic interests - for example, name me two movies that you saw recently that wasn't a hollywood blockbuster or an 'art film' from Europe.

But with the spectacular failure of the attempt by the US at multilateralism for IP at TRIPS, it was forseeable that they would seek to supercede TRIPS by way of this 'gentlemen's club' type agreement that addresses only their pressing needs in key markets. TRIPS processes was too slow, consensus among 150+ nations is too cumbersome, the lowest common denominator is too low. The only way to get what you want fast is to form a small like-minded 'gang', bully, and barter hard. The 'Al capone' analogy becomes more relevant now ...

Following on this point, it is my opinion that there is no true model for democracy in the international IP stage. Everything ties back to trade, money, dollars and cents. Even at gathered assemblies of WIPO and WTO, bad principles of IP law are pervaded and good principles ignored, all in the name of dollars and cents. For example, why is the EU demanding that it wants to 'clawback' geographical indications that have become generic? so that it can have a bargaining chip for its agriculture negotiations - countries will bargain for 'clawback' to be off the table, perhaps in exchange for letting the EU keep some of its agricultural subsidies. Why is there inertia in WIPO to come to new treaties concerning broadcasting and other new emerging rights? because the WIPO development agenda and its funding, the lifeblood of least developed nations, has stalled.

I truly fear that international IP policies will no longer be fully developed on a sound IP basis, but become anaemic malnourished beings who are starved of sound reasoning.