Speaking For Freedom, Normalizing the Net Draft – Not to be cited without author’s permission

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Speaking For Freedom, Normalizing the Net

Draft – Not to be cited without author’s permission

Peter (Jay) Smith, Phd.

Political Science, Athabasca University

Athabasca, Alberta, Canada,



jays@athabascau.ca

Paper Presented at the Annual Meeting of the New Zealand Political Studies Association, December 1 and 2, 2011, University of Otago, Dunedin, New Zealand

In January 2010 U.S. Secretary of State made a speech promoting the State Department view that the Internet was an excellent means of promoting democracy and freedom. “Our government,” she noted, “is committed to helping promote internet freedom.” Moreover, the intent of the U.S. government was “to put these tools in the hands of people who will use them to advance democracy and human rights.” (January 21, 2010, http://www.state.gov/secretary/rm/2010/01/135519.htm) Here Clinton was clearly endorsing the long held view that the Internet and digital technologies were technologies of freedom. Yet, at the same time Clinton was speaking the Office of the United States Trade Representative (USTR) was attempting to conclude a plurilateral agreement, the Anti-Counterfeit Trade Agreement (ACTA), that would restrict Internet freedoms by ratcheting up global norms on intellectual property protection (IPP), norms based in part on U.S. legislation, the 1996 Digital Millenium Copyright Act (DMCA). The DMCA, for example, criminalized the access of digitally protected material whether or not copyright itself was infringed. The actions of the U.S. in this and other global, regional, and bi-lateral forums to impose its norms of IPP represent a long held view of scholars that the Internet and informational technologies are in the process of being normalized, in essence, put under the control of governments and corporations, reinforcing hierarchies of power and limiting Internet freedoms.

While the debate between the cyber-optimists of Net freedom and the cyber-pessimists of Net control has been occurring since the arrival of the Internet there is increasing evidence that “The Dark Side of Internet Freedom” (Morozov 2011) is emerging stronger than ever aided by governments and corporations using a variety of regulations, controls and means of surveillance. For some, the focus is on the increasing control and reliance on censorship in countries such as China, Iran, and Saudi Arabia thus making the issue one of authoritarian rule. In this paper, however, the focus will be on the efforts of representative democracies, in particular, the United States, to curtail Net freedoms by the introduction of more restrictive copyright and anti-circumvention measures such as the Anti-Counterfeiting Trade Agreement, recent bilateral trade agreements between the US and other countries, and, in addition, reforms of national legislation. This has lead to a core struggle of the Internet age to balance the demands by powerful forces, state and corporate, for greater protection in the global digital environment with the countervailing demands to ensure that the Internet and knowledge remain free, in the public domain, and accessible by the maximum number of people. In particular the paper will examine U.S. efforts to convince Canada, New Zealand, and Australia to accept its standards of IPP by a variety of means including bi-lateral, regional and global trade agreements, in particular, ACTA.

Yet, at the same time, as Manuel Castells argues, “where there is domination, there is resistance to domination” (2010, Vol. II: 247) This resistance has lead to intense politicalization of copyright issues. This resistance from civil society and a number of governments has had, I argue, mixed results with an apparent weakening of U.S. hegemony over IPP at the global level, in particular ACTA, but considerable ability of the U.S. to impose its standards on a country by country basis as will be evident in an a comparison of U.S. efforts with Canada, New Zealand and Australia.

The paper will be developed as follows. First, I will outline the debate over the Internet as a space of freedom versus a space of control and surveillance. Second, I will then discuss the increasing salience of copyright issues, particularly digital copyright, and the growing interest of states, particularly the United States, in regulation and control. Third, I will outline the theoretical framework which I use to analyze the political dynamics of restrictions on Internet and copyright freedom. Here in particular I refer to the literature in terms of forum shifting and framing. Fourth, following three above, I examine the phenomenon of “forum shifting” whereby the United States uses a variety of venues – global, regional, bi-lateral – to shape and impose its norms of IPP. Fifth, in reference to Canada, New Zealand and Australia, I consider how the U.S. employed its power and influence particularly in framing the issue in terms of “piracy” and “theft” to convince these governments that stronger IPP controls were necessary. Yet, as noted above there has been strong counter-hegemonic resistance to these efforts that also must be taken into account. Finally, the paper considers the current state of play in IPP. Is U.S. hegemony over IPP in decline as ACTA falters or will the U.S. simply forum shift, that is, create or move to other venues, regional or bi-lateral where its success is more likely?



Cyber-technologies – Technologies of Freedom or Technologies of Control?

For approximately four decades the future of what I describe as cyber-technologies, in particular the Internet, has been cast in oversimplified terms as a dichotomy of freedom versus control. On the one hand there are those who argue that cyber-technologies are technologies of freedom. The idea of technologies of freedom was first articulated in the rallying cry of technological activists that “information wants to be free,” ascribed to Stewart Brand (Wagner, 2003) at the first Hacker’s Convention in 1984. The phrase has come to mean free in terms of increasingly low cost in an era of digital reproduction or liberated, free from any controls. Indeed, freedom has become the core value of hacker (not “cracker” culture). According to Castells to hackers freedom means the “freedom to create, freedom to appropriate whatever knowledge is available, and freedom to redistribute this knowledge under any form and channel chosen by the hacker.” (2001:46,47) It is this ethos that underpins the open source software movement, a fundamental source of opposition to greater control and regulation of copyright by corporations and government. Here, the notion is one of cyberspace as non-regulated, de-centralized and anarchic with no role for the state.

The idea that control of the Internet was impossible lead to the belief that authoritarian countries that wanted to open up the global economy would be put in a box once they did so. What has become known as the dictator’s dilemma was first enunciated by U.S. Secretary of State, George Schultz, in 1985. According to Schultz “totalitarian states face a dilemma: either they try to stifle these technologies and thereby fall further behind in the new industrial revolution, or else they permit these technologies and see their totalitarian control inevitably eroded.” (Quoted in Morozov 2011:94) This is a point of view echoed by Hillary Clinton today.

The counter to the notion of cyberspace as liberating is found in the normalization thesis. The argument here is that “pre-Internet power brokers [state and corporate] will come to define the online world autonomously of technological change” (Anstead & Chadwick, 2008, p. 58). Some such as Darin Barney argue that the Internet will manifest a technological modernity that will promote a homogenous capitalism and a homogenous state. He disputes the notion that the Internet cannot be controlled, and argues that “despite real (but not insurmountable) difficulties, network media can be legislated upon, policed and governed.” (2001:245)

Today, Barney’s argument is echoed by others. More recently, Deibert and Rohozinski argue that “Whereas it was once considered impossible for governments to control cyberspace, there are now a wide variety of technical and nontechnical means at their disposal to shape and limit the online flow of information.” (2010A:49) As the Internet has become ever more accessible it reveals a darker side of crime, theft, risk, espionage, hate, extremism, and pornography. In essence, the Net becomes increasingly viewed as a wild and wooly place with characteristics of a Hobbesian state of nature and, hence, need for control and regulation. According to Deibert and Rohozinski “as the Internet has grown in political significance, an architecture of control—through technology, regulation, norms, and political calculus —has emerged to shape a new geopolitical information landscape.” (2010B:4)

Part of the architecture of control can be found in increasing efforts by governments and businesses alike to manage risk in cyberspace. This has lead to the increasing securitization of cyberspace and a potential threat to Internet freedoms. “For example,” claim Deibert and Rohozinski “certain security measures and regulations have been put in place for purposes of copyright and intellectual-property protection.” (2010 A:49)


Intellectual-Property Property at Risk

For the United States in particular intellectual-property protection is now seen as imperative to protect its competitive position in terms of global trade. In a world were digital products and services are of increasing importance economically the United States has an overwhelming competitive advantage. According to Simons, “The export of intellectual property is believed to be one of the most important economic factors in the future of the United States.” (1999:67) For example, as the map below represents the United States collects eighty per cent of worldwide net exports of royalties and license fees in terms of intellectual property. Only eighteen countries as of 2002 were net exporters of license fees and royalties. Canada, New Zealand, and Australia were not among them leading one, then, to ask why did these countries feel it was necessary to accede to U.S. standards in terms of IPP?

Source: http://www.worldmapper.org/display.php?selected=99

For those net exporters of intellectual property there has been a sense that their intellectual property rights (IPRs) are at risk. Here one must have some sense of how IPRs are created. The essential purpose of IPRs is to construct “a scarce resource from knowledge or information that is not formally scarce.” (May 2006:5) Unlike scarcity in the material world scarcity in terms of knowledge and information has to be created. In the material world where there are two or more possible users they must compete for the resource. However, knowledge and information can be used by multiple users without detracting from their utility. (May and Sell 2006) There is, in effect, potentially no scarcity when it comes to knowledge and information. Historically, it has been the state that has legally created scarcity in the knowledge commons, this with the intention to ensure that under capitalism that knowledge and information can be commodified. As May notes “the commodification of things into forms of property removes them from the sphere of social interaction and places them in the realm of marketized interactions, where they can be bought and sold with little reference to their production.” (2010:149) The argument is that without economic rewards there would be little incentive to innovate within a capitalist society.

However, IPRs have never been absolute. There has been a historical balance between the rewards that result from private ownership and the public interest or benefit. This balance has been ensured through a variety of means, for example, property rights in knowledge and information are temporary and revert to the public domain after a set period of time that permits a reasonable return for the legal owner of the rights. In addition, the rights of copyright holders are limited and have historically been subject to provisions of fair use (United States) and fair dealing (Europe) for private, research and educational purposes. While commodification and the social uses of knowledge have existed in balance the introduction of digital technologies has posed a challenge to owners of IPRs, particularly owners of copyright. The ease with which anyone with a computer can reproduce high quality digital copies of digital artefacts means that copyright owners no longer have a monopoly on high quality reproduction. (May 2007) This, in turn, has lead to considerable and increasing anxiety by corporate owners of copyright over potential theft and digital piracy. According to May “the discourse of ‘piracy’ and ‘theft’ dominates the discussion of copyright in the global political economy” (2010:151) and has lead to an ongoing effort to establish, and strengthen the international enforcement of IPRs.



Selective Strategies for Advocates of IPP – Forum Shifting and Framing

Those campaigning for enhanced protection have used two primary methods – forum shifting and framing. Forum shifting is a process by which a negotiating agenda is moved from one venue or organization where a state, in particular the United States and to lesser extent, the European Union, is facing resistance to another friendly venue or organization. As Drahos notes “the basic reason for forum-shifting is that it increases the forum-shifter’s chances of victory. … Forum-shifting is a way of constituting a new game.” Facing defeat or a sub-optimal result in one forum, a state may gain a better result by shifting its agenda to a new forum, for example, from one multilateral forum to another, from the World Intellectual Property Organization (WIPO) to the World Trade Organization (WTO) back to WIPO and then later to ACTA . Or the shift can be vertical, for example, from a state to a multilateral forum or from a multilateral forum to the use of bilateral and regional free-trade agreements to secure IPP in countries. (2004:55,56) This is a cat and mouse game exercised by those seeking to maximize IP protection.

In sociological terms, for those resisting the encroachment of copyright these forums are known as political opportunity structures, that is, as venues, presenting both threats and opportunities for social movement actors. In sum, these forums often become contested with state primacy and dominance challenged by non-state actors who sometimes are able to alter or transform them. (Sikkink, 2005 in Della Porta and Tarrow eds.)

In the case of IPRs states and non-state actors attempt to frame how the issue is socially constructed. Framing thus becomes a means of shaping mass opinion and possibly political outcomes. For example, in 2003 “No War in Iraq” was a frame that galvanized millions of protestors around the globe. More recently, “We are the 99%” has become the rallying cry for those protesting growing inequality and corporate control.

However, framing is also conducted by powerful actors. In the case of IPRs the United States has done a masterful job in framing the issue in terms of the discourse of piracy and theft which, as May noted above, dominates discussion on copyright and intellectual property. According to Patricia Loughlan ‘pirates” has become the dominant ‘metaphor’ in intellectual property discourse. This metaphor, she says, “draws upon some highly negative images of lawlessness, and violent, predatory behavior … exercised against helpless victims.” (2006:217) The helpless victims being, of course, the creators and owners of intellectual property. The result, argues, Loughlan, is that the ‘piracy’ metaphor has set the “agenda and the normative framework for interpreting the issues in international trade treaty negotiations over copyright and patent rights ….” (2006:226) In Foucaldian terms the discourse of piracy becomes a means that states and corporations can use to impose disciplinary power on social deviants in cyberspace who file share or otherwise are seen to be infringing on copyright. (Denegri-Knott 2004)

Piracy, then, became the discourse the United States used to help convince other countries that more IPP was needed, a discourse which at times was imposed upon countries (for example, Canada,) that were seen as deviant by the USTR and imposed as well by countries upon their populations by means of accession to global and bi-lateral agreements. In June 1988, a US trade representative put it this way:

…we have made a good start at putting pirates out of business…But many countries are yet to act, and many others still need to improve create binding multilateral obligations which will ensure that nations maintain adequate and effective protection. We continue to seek this goal, through the GATT [General Agreements on Tariffs and Trade], which complements our bilateral efforts and provides an excellent opportunity for us to drive pirates out of business…(As quoted in Simons, 1999: 9,10)
Global Governance and Intellectual Property

The story of the global governance of intellectual property is an often told and need not be repeated in detail here. (See May 2010, Sell 2010, May and Sell 2005) What I highlight are certain key aspects of that story with additional material on ACTA. Since 1995 IPRs have been subject to institutions of global governance. Today, in an era of globalization, power is said to be dispersing with government giving way to governance, in particular, global governance as nation-states find it increasingly difficult to address problems transcending their borders.

Manuel Castells refers to global governance in terms of networks whereby private non-state actors, non-governmental organizations and, in particular, corporations play an increasing important role in decision-making. That said, network governance requires a leading role by the state. Particularly, in terms of IPRss, the private sector needs the state to create and enforced desired international norms. It is the state, not the private sector, which has the formal legal authority to negotiate internationally. Here the state, and, in particular the U.S. in terms of IPRs becomes the lead actor in what Castells describes as “nodes of a broader network of power” composed of plural sources of authority, public and private (2010:357) According to Castells within this complex network system of governance the individual state in the network must reconcile three interwoven processes:

How individual states relate to their constituencies, by representing their weighted interests in the network state; how they ensure the balance and power of the network state to which they belong, as this network state provides the operational platform that ensures the efficiency of the state in a globalized system; and how they advance their own interests vis-à-vis other states in their shared network. (2010:361)

For Canada, Australia and New Zealand there are perceived advantages in being in the dominant node of governance. Yet, the sovereignty of these states is compromised within this bloc and to resist U.S. hegemony is something that they have been reluctant to do.

Global governance is dispersed, multilateral, plurilateral, regional and bi-lateral in nature and interwoven in many respects. Bi-lateral and regional agreements between countries can be used as precedents to secure multilateral agreements such as the 1995 Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement which, in turn, can be used to obtain compliance from other countries. Thus these agreements whether multilateral or bi-lateral can be used as a means of discipline upon nation-states, particularly in terms of IPRs. The next part of the paper will discuss how broader multilateral and plurilateral forums were used to create a series of international treaties intent on ratcheting up IPP. Yet, overlapping with these processes Canada and Australia entered into regional and bi-lateral agreements with the United States (and with New Zealand preparing to) that became rationales for imposing more stringent domestic protections for intellectual property, patent protection for pharmaceuticals for Canada in terms of the North American Free Trade Agreement and enhanced IPRs for Australia as a result of its free trade agreement with the United States. In anticipation of a FTA with the United States New Zealand also enacted stronger IPP. The overall result, a tilt towards the owners of copyright, means that the historical balance between owners and the social uses of knowledge in terms of copyright has become upset. It is this upsetting of the traditional balance between owners and the social good that has contributed greatly to the politicization of copyright which is morphing into a global movement of resistance as is evident, for example, in the open source or open access movement.

Yet, initially, states and corporations pretty much had the field to themselves in the writing of, for example, the TRIPs agreement. It was only as the implications of these agreements became more widely known that resistance grew among not only among NGOs but also some nation states particularly those in the developing world. As this has become evident and existing venues less cooperative the United States and the EU have sought out other venues in which they could ratchet up protection for IP.

The starting point here is the 1995 TRIPS agreement. Prior to 1995 as May (2010) has pointed out there were a variety of multilateral agreements concerning IPRss overseen by the WIPO. Yet, as May notes, “the governments of the U.S. and various members of the EU, as well as many multinational corporations (MNCs) based in these countries, regarded these agreements as toothless in the face of ‘piracy’ and infringement.” (2010:366) This lead to the negotiation of TRIPS in which in a select number of states played a major role.

TRIPS was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994 and is administered by the WTO, the successor of GATT. Sell makes clear, however, that while it was the U.S. government that formally shifted forums the impetus for the shift came from twelve corporations which ultimately “made public law for the world” (1999:172). In sum, influential U.S. firms with high stakes in the intellectual property sector mobilized an international coalition of U.S., European and Japanese firms, the U.S., the EU, and Japanese governments to protect their competitive advantage in IP in terms of trade. The corporate executives of these twelve firms indentified a problem (foreign pirates) in the U.S.’s growing trade deficit and framed a solution which became known as TRIPS.

TRIPS, in brief, gave most of what its corporate proponents asked for (Sell, 1999) requiring all members of the WTO to take positive action to enforce minimal standards of intellectual property protection. The result was that most countries in the global south and many in the global north had to introduce or change their domestic legislation to align with TRIPS provisions. While most of the new protections were wide ranging including covering copyright protection for software patents they are most noted for particularly for their additional protections for medicines. Overall, TRIPS has proven costly to many states and societies not only in terms of having to change domestic legislation but also in terms of the growing trend of corporations to socialize the costs of enforcement of monopoly privileges and the large flows of fees flowing to corporations in the U.S., Europe and Japan by most members of the WTO who are not notable producers of intellectual property.

Almost immediately after TRIPS was passed corporations began to press for further protection of IPRs particularly in terms of digital regulation which was seen as a weaker aspect of TRIPS. By the latter part of the 1990s, however, TRIPS provisions, particularly those on the patents of medicines were receiving critical attention at the WTO. Facing a more critical environment the U.S. and the EU decided it was best to negotiate additional IPP at another venue, the WIPO. The WIPO, which had been eclipsed by TRIPS, had sought to re-establish itself in terms of IPRs and enforcement. In another example of forum shopping WIPO became the venue in which the the WIPO Copyright Treaties (WCT) were approved in 1996. Once again the fear of piracy and theft underlay the thought and rhetoric of corporations apprehensive at the increasing ease by which digital artifacts could be reproduced by ever increasing numbers of people. (May 2010B)

In essence, WCT provided another layer of protection for copyright particularly in terms of the legal recognition and protection of digital rights management (DRM). DRM is a technological means by which either software or hardware can be employed by the owners of IP to prevent unauthorized access, use or distribution of digital content. The WCT effectively prohibits the circumvention of DRM. (May 2010B)

However, to be effective the WCT had to be ratified by member countries. In 1998 the United States Congress passed the Digital Management Copyright Act as part of its ratifying and enabling legislation of the WCT.1 The DMCA provides strict and sweeping protection for digital property effectively limiting the fair dealing provisions of the WCT. Particularly controversial were digital rights management provisions. According to Reichman and Uhlir:

In effect, the DMCA allows copyright owners to surround their collection of data with technological fences and electronic identity marks buttressed by encryption and digital controls that force would-be-users to enter the system through an electronic gateway. To pass through the gateway, users must accede to nonnegotiable electronic contracts, which impose the copyright owner’s terms and conditions without regard to the traditional defenses and statutory immunities of copyright law. (2003:378 as quoted in May and Sell 2006:182)

Still concerned about the potential infringement and the need for additional enforcement particularly in terms of digital property the United States and Japan opted in 2007 to negotiate a plurilateral agreement to establish additional standards on intellectual property rights enforcement. In essence the U.S. and Japan were opting out of the WTO as well as the WIPO as negotiating fora as the U.S., in particular, no longer saw them as convivial spaces to negotiate.

An EU analysis of the ACTA notes Acta “was born out of the frustration of the major

industrialised economies with progress on monitoring and norm-setting on the enforcement of

intellectual property rights in multilateral fora. In the WTO Council for TRIPS (‘TRIPS Council’),

Brazil, India and China have consistently blocked the inclusion of enforcement as a permanent

agenda item.” At the WIPO enforcement issues were no longer a priority. Susan Sell has analysed the successful efforts of Access to Knowledge (A2K) activists and developing countries such as Argentina and Brazil to re-frame the WIPO priorities from their technical focus on the protection and governance of IPRs to “development issues.” (2010)

So, once again there was a forum shift to the creation of a new negotiating space completely outside existing multilateral organizations. According a USTR document “the ACTA is envisioned as a leadership effort among countries that will raise the international standard for IPRs enforcement to address today’s challenges of counterfeiting and piracy.” (USTR)2 Not only would ACTA establish new standards for IPRs enforcement it promised to improve international cooperation in the enforcement of IPRs. (Weatherall 2011)

In October 2007 the United States, the European Union, Switzerland and Japan announced they would negotiate the ACTA. They were soon joined by Australia, Canada, Jordan, Mexico, Morocco, New Zealand, Republic of Korea, Singapore, and the United Arab Emirates. Given their position as IP producers and exporters the logic of the original four participants is obvious but on what basis were the other parties invited to participant? None are significant IP producers or exporters. What they have in common is that they either are FTA partners with the United States (Canada, Mexico via NAFTA 1994, Jordan 2001, Australia 2004, Singapore 2004, Morocco 2006) were awaiting approval (Republic of Korea 2010), or were in the process of negotiating a treaty (United Arab Emirates) or were intending to as in the case of New Zealand. In essence, ACTA was intended to incorporate stronger IPP provisions in these agreements or as the USTR put it “ACTA will build upon the Administration’s prior bilateral and regional cooperation successes.” (2008) The process was intended to model the TRIPS process where a select group of like minded countries and corporations negotiate to reach a consensus among themselves (the proposed ACTA) and later include other countries on a take or leave it basis. 3

The ACTA process was strongly criticized for its almost complete secrecy. The USTR attempted to maintain secrecy by means of a confidentiality agreement that it prepared and that it required all participants, states (including a select number of corporations with access to documents) in the process to sign before negotiations began. However, the negotiations soon became subject to recurring leaks of key documents. Moreover, the process was exclusive in so far it left out most developing countries, in particular those countries seen as infringers of IP, China, India and Brazil.

Beyond process there were grave concerns about substance particularly in terms of digital enforcement. According to leaked documents including a 1 July 2010 text there were detailed provisions covering the following:


  • Liability of online services providers raising the fear that they would have to monitor the Internet communications of their customers raising issues of privacy and institute measures to disconnect customers infringing IP.

  • Provisions for a three strikes and you are out rule – cut off from the Internet - if, for example, one person in the household at a particular Internet address file shared copyrighted material.

  • Internet service providers would also have to enforce what is known as provisions for “notice and take down.”4 These are provisions of the DMCA which permit a copyright owner to request websites to take down infringing material in order to avoid liability.

  • Stricter provisions on technological protection measures (TPMs) or digital locks modeling the DMCA. In this case circumvention will apply to any hacking, not necessarily copyright infringement. A person could be held criminally liable for deliberately circumventing a locked down device and accessing legally useable material. (Kaminski April 2010)

  • Criminal responsibility for IPRs infringement “for purposes of commercial advantage or private financial gain (no matter how low the number).” Criminal liability could include as well as willful infringements without intent of financial gain if they negatively affected the owner of copyright. (Weatherall 2009:12) Thus a person downloading a CD or DVD or portion thereof to avoid paying for it could give rise to criminal liability. The result claims Kaminski is that “this standard has the potential to criminalize the behavior of an enormous number of individuals, worldwide.” (2009:253)

Unlike the negotiation of TRIPS which the U.S. was attempting to emulate in terms of its secrecy, its club like atmosphere of select countries and corporate insiders, this time the opposition consisting of a mix of NGOs and states were prepared, much more critical and willing to mobilize. The result was a backlash that put considerable pressure on the negotiators to be more open and transparent and to drop offending provisions.

The countermovement, like many other transnational movements opposing neo-liberal globalization is highly eclectic and diverse in nature. Participants in the countermovement share a common desire to keep knowledge in the public domain. In a sense the countermovement can be seen as a movement of movements as it includes those engaged in the access to knowledge (A2K) and open source movements. This includes governments as well as supporters of the free and open source software (FOSS) movement such as the Creative Commons, Lawrence Lessig, and the Open Knowledge Foundation.

An indication of the breadth of the countermovement can be found in the more than 100 civil society organizations from around the world who on September 15, 2008 signed a letter to ministers of governments participating in the negotiation of ACTA to make the process transparent and to address key concerns over substance several of which were discussed above. (http://www.essentialaction.org/access/?m=200809)

An analysis of the issue network indicates that many (but not all) of its actors can be found in the United States with the key nodal actor being the Electronic Frontier Foundation (EFF) an organization dedicated to defending the public interest in terms of digital rights. (http://www.eff.org/about). Included in the movement as well are growing numbers of civil society and political organizations from countries participating in the ACTA negotiations in New Zealand, Australia and the European Union. In Australia, a diverse coalition of organizations consisting of the Australian Digital Alliance (a public interest organization), the Australian Library and Information Association, Choice (a consumer organization) and the Internet Industry Association made a submission to the Australian Department of Foreign Affairs and Trade. The submission raised a number of concerns including the need for transparency and accountability in negotiations, presumption of innocence, the need to balance the rights of owners and users and to “avoid promoting a surveillance culture”, the need for safeguards against liability for intermediaries such as educational institutions, libraries and Internet Service Providers. (Undated, http://www.digital.org.au/submission/documents/PrinciplesforACTAnegotiations.pdf) In New Zealand a coalition of NGOs including the NZ Open Source Society, the Internet Service Providers of NZ, and the Creative Freedom Foundation NZ among others demanded greater transparency in the negotiations. (http://acta.net.nz/) In Canada opposition centred around the the blog of the leading critic of ACTA, Michael Geist.

In Europe, the Pirate Party was created contesting elections and in 2009 the Swedish Pirate Party contested the European Parliamentary elections and won 7.13% of the vote in Sweden and two seats in the European Parliament. (Wikipedia 2010) Pirate Parties have been sprouting up since 2006 when it was founded internationally. The goal of the 33 Pirate Party “affiliates around the world is to reform laws regarding copyright and patents” and to protect privacy. (Wikipedia 2010)

In the EU itself a number of states made it clear ACTA as envisioned would not be applicable to their countries. In the Netherlands, for example, Vice-premier and Minister for Economic Affairs, Agriculture and Innovation, Maxime Verhagen, stated: “‘There has never been any question of incorporating ACTA in the Netherlands. ACTA does not have supremacy over European or national law.” (European Parliament, 2011 http://www.erikjosefsson.eu/sites/default/files/DG_EXPO_Policy_Department_Study_ACTA_assessment.pdf) Similar responses came from the German, UK, and French Parliaments) Elsewhere in Europe on March 10, 2010 the European Parliament by a margin of 663 to 13 passed a resolution strongly criticizing ACTA (2010). The resolution was concerned that ACTA could violate EU laws and stated that the European Parliament could go to court if ACTA contained any provisions cutting off users from the Internet for downloading copyrighted material. The resolution also spoke to the need for transparency and to include more developing countries in the negotiations

Exactly what influence this opposition had is unclear but external pressure was clearly building and in October 2010 the negotiators of ACTA made a volte face and dropped its most offensive digital enforcement provisions. According to one study “what we have now in the agreement does not bear out any of the fears regarding

this section [on digital enforcement]” (European Parliament 2011 http://www.erikjosefsson.eu/sites/default/files/DG_EXPO_Policy_Department_Study_ACTA_assessment.pdf ) This point of view was substantiated by Michael Geist, research professor on copyright law at the University of Ottawa. According to Geist the United States caved on the Internet chapter which “must be seen as a failure by the U.S., which clearly envisioned using ACTA to export its DMCA-style approach…. Instead, the treaty leaves much the same flexibility as exists under the WIPO Internet treaties.” (Oct 6, 2010 http://www.michaelgeist.ca/content/view/5352/125/)

A detailed study of the agreement by Australian copyright scholar, Kimberlee Weatherall, argues that in terms of achieving its two primary goals, establishing a new standard of IP enforcement and improving international cooperation in IP enforcement that ACTA failed “to succeed on its own terms.” (2011:231) Moreover, in the area of digital enforcement the “most ambitious proposed texts of ACTA were gradually reduced to an uncertain and vague shadow of their earlier selves, and … highly specified provisions found in early drafts were, in the end, whittled down to little more than aspirational statements about ensuring that enforcement procedures are available and encouraging business entities to cooperate.” (Weatherall 2011:260)

Moreover, while ACTA does provide mechanisms by which it can be improved and amended Weatherall doubts this can occur. To begin with the differences among the parties on key sections may be too deep to be resolved. According to Weatherall “parts of the text are unclear precisely because the issues at stake are important, difficult, and because there exist divergences between the Parties rooted in deep-seated differences in practice and procedure. In short, perhaps a final lesson of the ACTA negotiations is that, despite negotiating efforts, procedural differences are surprisingly difficult to overcome.” (262) The study for the EU cited earlier states that ACTA “risks become [sic] one of a series of irrelevant international attempts at negotiating standards outside the multilateral framework of WIPO, the WTO and other institutions.” (2011:16)

Irrelevant or not on October 1, 2011 a signing ceremony for ACTA was held in Tokyo with the United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore as signatories. The European Union, Mexico, and Switzerland attended the ceremonies but did not sign. However, according to Micheal Geist:

The signing of the agreement does not mean the agreement is enforceable yet. ACTA stipulates that it takes effect when six countries have deposited instruments of ratification, acceptance, or approval. In other words, most countries must still ratify the agreement (much like the WIPO Internet treaties, signing indicates general approval of an agreement but being bound by the terms requires ratification).  (October 3, 2011 http://www.michaelgeist.ca/index.php?option=com_tags&task=view&tag=acta&Itemid=408)

What the future holds for ACTA is, thus, still uncertain.

What is Left in the U.S. IPP arsenal, the role of Bilateralism, Bilateral and Regional Trade Agreements

The perceived non-success – some would say failure – of ACTA and the United States to achieve its goals raises some very important questions. Is the effort of the United States to globalize its norms of IPRs at the global level through means of multilateral or plurilateral agreements dying, if not, dead? Recent experience at the WTO, WIPO and now ACTA indicate that in larger forums the United States finds it more difficult to impose its standards of IPRs. Will the United States and EU find it advantageous to utilize their superior bargaining power through bilateral country to country relationships, bilateral and regional free trade agreements? Evidence from Australia, New Zealand and Canada suggests that this is the case, that at the bilateral level where the U.S. can work in a one on one manner taking advantage of the difference in power it is much more successful in terms of imposing its standards of IPRs. This section will discuss the means the US employed to achieve its desired results and the results themselves

A brief, initial look indicates that to large extent that the U.S has been relatively successful, with some variations, in imposing its IPP standards upon these three countries. Australia, for example, negotiated a free trade agreement with the United States in 2004, the Australian United States Free Trade Agreement (AUSFTA) that resulted in Australia accepting provisions modeled on the DMCA which exceeded international norms. As part of its intention to negotiate a free trade agreement with the United States in 2008 in New Zealand imposed a notice and take down system that exceeded the U.S. three strikes and you are out (cut off) from the Internet with a one strike you are out even on the suspicion of infringing copyright by means of filing sharing or illegally downloading copyrighted material. The uproar was so loud that the new National government in 2008 backed down and just recently substituted a three strikes law that could result in having violators pay a substantial penalty to the owner of the copyrighted material a measure more in keeping with the DMCA. This, too, has resulted in a strong reaction. As this paper was written the Canadian government was preparing to pass legislation approving a Digital Rights Management (DRM) standard exceeding that of the DMCA.

Now, it should be noted that enhanced IPP is really not about free trade at all. It is really about protecting the monopoly profits of corporations in intellectual property, particularly those of the United States. Put a bit differently enhanced IPP is really about “protectionism”, protecting the competitive advantage of the U.S. in the sales of intellectual products. For the United States government this is a rational policy. As Kimberlee Weatherall states, “When the US strengthens IP law, and hence increases the rewards reaped by its creators in the US market, it is likely that a significant proportion of the profits will go to American creators.” (2004:20) Strengthening IPP for countries such as Australia, New Zealand and Canada which have trade deficits in intellectual products their consumers and users pay the additional costs in terms of increased royalties and licence fees. According to Weatherall speaking of Australia:

From a US perspective, raising the level of IP protection in Australia to the same level [as the US] represents an unalloyed benefit to US interests. American consumers and users bear none of the increased costs, but American innovators selling their products here reap the reward. No wonder the US has made higher IP standards a key objective in bilateral trade negotiations. 2004:21 http://www.cis.org.au/images/stories/policy-magazine/2004-summer/2004-20-4-kimberlee-weatherall.pdf)

Now, what is rational for the United States in enhanced IPP is thus not necessarily rational for Australia, New Zealand and Canada. This raises the question of why these countries have acceded to US demands. Here reference to Castells notion of a network state is useful. For historical, cultural, economic and military reasons Australia, Canada, and New Zealand are part of the power bloc or network state dominated by the United States. As Castells argues each state “must assume the interests of the overall network state, and therefore must respect the domination of the most powerful interests in this network as a condition of being a node in it.” (2010:363) Thus, by being a member of the network state dominated by US interests the maneuverability of each country is limited.

Being nodes in the network state permits the United States to isolate each and employ the full weight of its pressure and power. However, the state does not act alone. In each case the Australian, New Zealand and Canadian governments were subjected to intense lobbying by multinational corporations in the media, entertainment (eg. film, music), publishing, computer software, and artists demanding enhanced IPP in the name of increased innovation, creativity and employment in these industries. The overall effort was coordinated by the US state, in particular the USTR. The USTR was able to employ a variety of means of discipline to ensure compliance. One was through the use of Section 301 of the 1974 US Trade Act that permits the President to take action against a foreign government that violates an international trade agreement or burdens or restricts US commerce. Each year the US publishes a list of its most egregious offenders. Second, the USTR and US multinational corporations were able to successfully frame the issue of IPRs in terms of piracy and theft. This is a discourse that all three governments accepted and used themselves.

Section 301 has been applied in particular to Canada over concerns about IPP for several years beginning in 2004. In 2010 Canada was placed on the priority watch list with Algeria, Argentina, Chile, China, India, Indonesia, Pakistan, Russia, Thailand, Venezuela. This was the second year in a row that Canada kept such company, largely because of its perceived weakness in IPP. According to the 301 report:

Canada has not completed the legislative reforms in the copyright area that are necessary to deliver on its commitments. The United States urges Canada to enact legislation in the near term to update its copyright laws and address the challenge of Internet piracy. … Canada’s weak enforcement of intellectual property rights is also of concern, and the United States continues to encourage Canada to improve its IPRs enforcement system to provide for deterrent sentences and stronger enforcement powers. (http://www.ustr.gov/webfm_send/1906)

Like the unsubstantiated claims over the damage caused by piracy the truth is scarcely relevant. According to the World Economic Forum Global Competitiveness Reports Canada ranks ahead of the United States, Japan and the United Kingdom on intellectual property protection. (See p. 360 of the latest 2010 report for example.)

Notwithstanding the above with the first majority government in seven years the Conservative government in Canada in late 2011 was determined to pass legislation reforming Canada’s copyright legislative. Tongue in cheek Michael Geist labeled the new legislation a combination of two bills, “the Copyright Modernization Act together with the Reduce U.S. Pressure Copyright Act.” (September 29, 2011 http://www.michaelgeist.ca/content/view/6033/125/) Previous attempts to pass legislation had failed due to the fall of minority governments. In Canada piracy as the dominant discourse became so pervasive among Canadian politicians that it became an object of caricature. The Internet was a wild, untamed space that needed the discipline of Canadian law.

Canadian Copyright: A Citizen's Guide Edited by Laura J. Murray and Samuel Trosow, 2007

Much the same refrain was heard in Australia where the need to get tough on pirates repeated in a number of speeches and press releases. (Weatherall, 2007) Speaking to the House of Representatives on the occasion of second reading of the 2006 Copyright Amendment Bill Philip Ruddock, Attorney-General of Australia, the Minister responsible for the legislation said “We want laws in place which mean copyright pirates are penalized for flouting the law.” (Parliamentary Debates, House of Representatives, http://www.aph.gov.au/hansard/reps/dailys/dr191006.pdf October 19, 2006) In New Zealand, references to piracy in during the 2008debates on the Copyright (New Technologies) Amendment Bill were common among both the Labour and National Parties.5 Likewise, the same rhetoric peppered submissions to the New Zealand Parliament both in 2008 and in 2010 when the Copyright (Infringing File Sharing) Amendment Bill was being considered. Images of an uncontrolled, dangerous Internet were also common. Video store owners representing a declining industry pointed to online pirates as the villains as in this reference:

It has been proven that illegal copies of stolen product are crippling the arts industries across the world resulting in the loss of billions of dollars in revenue and countless jobs, it is common knowledge that [online] piracy supports and funds terrorists and organized crime. Because … the the risks are slight it has become an easy market for criminals to exploit, sadly child pornography is funneled through the same organizations. (Submission United Video Trentham May 25, 2010, http://www.parliament.nz/NR/rdonlyres/7AEF417F-9E87-4E76-9225-5E7AD2969558/153426/49SCCO_EVI_00DBHOH_BILL9773_1_A52504_UnitedVideoTr.pdf)

Despite the rhetoric it must be said the above claims are unsubstantiated.

While the legislative outcomes in each country were different, for example, Australia has both stringent notice and take down and digital locks provisions, New Zealand, a strict notice and penalty provision but less restrictive digital locks provisions, with Canada closely emulating the digital locks provisions of the DMCA, the overall result is greater control over the Internet. In addition, enforcement of provisions will necessitate increased invasions of privacy. Internet Service Providers will have to monitor Internet use by their customers. In terms of digital locks or Digital Rights Management (DRM) a major study by the Canadian Internet Policy and Public Interest Clinic in 2007 included the following findings:

• Fundamental privacy-based criticisms of DRM are well-founded: we observed

tracking of usage habits, surfing habits, and technical data.

• Privacy invasive behaviour emerged in surprising places. For example, we

discovered e-book software profiling individuals.

• Many organizations take the position that IP addresses … can be collected, used

and disclosed at will. IP addresses are collected by a variety of DRM tools, including

tracking technologies such as cookies …. (Digital Rights Management and Consumer Privacy page ii, http://www.cippic.ca/sites/default/files/CIPPIC_Report_DRM_and_Privacy.pdf )



Conclusion: Forum Shifting Once Again? – The Trans-Pacific Partnership Agreement

Where does this leave the United States and its efforts to impose its norms globally? There is reason to believe that capacity of the U.S. to impose its standards of IPRs in multilateral and plurilateral agreements is waning. No longer are the WTO and the WIPO the responsive bodies they once were due to resistance by governments, NGOs, and social movements. The shift by the U.S. to a plurilateral forum, ACTA, has, to a large extent, not succeeded. While bilateralism has born fruit for the U.S. in terms of imposing its norms on Australia, New Zealand and Canada, even with intense resistance there remains discomfort among free trade advocates with bilateralism and bi-lateral trade agreements. According to Jadish Bhagwati, a noted economist and free trade agreement advocate, such agreements could fragment the trading system: “The result is a ‘spaghetti bowl” of rules…” (As quoted in Rimmer 2006:28)

Perhaps in recognition of the limitations of a fragmented system the United States has decided to forum shift once again, to a plurilateral forum, the Trans-Pacific Partnership composed of countries it can more easily dominate – Brunei, Chile, Singapore, Malaysia, New Zealand, Peru, Australia, Vietnam and the United States. According to copyright law professor, Michael Geist, the TPP has "everything [the US] wanted in ACTA but didn't get.” (March 11, 2011 http://www.michaelgeist.ca/content/view/5686/125/ ) According to one assessment “It follows the DMCA's laws regarding digital locks, ISP liability and subscriber disconnections.” (same link as above) Whether pressure from civil society organizations or differences among governments can derail the TPP is not known – New Zealand, for example, would have to accept US provisions on digital locks – but if the U.S. cannot succeed here its dreams of imposing its norms on IPRs on a global basis may well have come to an end.


1 In 2001 the European Union approved the European Copyright Directive implementing the WCT.

2 "Consolidated Text: Anti-Counterfeiting Trade Agreement". Office of the United States Trade Representative.

3 The list of corporations with privileged access include Google, Versizon, eBay, and the Consumer Electronics Association. The only civil society groups allowed to see any document on a read only and not to divulge basis have been Public Knowledge and the Center for Democracy and Technology. (Weatherall 2009:4)

4 It is important to point out that according to the Canadian Library Association “that in Canada, that ISPs are not just telephone and cable companies. Frequently school boards, colleges and universities, and sometimes public libraries serve as ISPs.” (April 30, 2008 http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/CLASubmissionanticounterfeiting080430.pdf)

5 See for example the speech by Judith Tizard on April 8, 3008 http://www.parliament.nz/en-NZ/PB/Debates/Debates/Speeches/7/3/f/48HansS_20080403_00001015-Tizard-Judith-Copyright-New-Technologies.htm

References:

References:

Anstead, N. & Chadwick, A. (2009). Parties, election campaigning, and the Internet: Toward a comparative perspective. In A. Chadwick & P. N. Howard (Eds.). Routledge Handbook of Internet Politics (pp. 56-71). New York: Routledge.

Barney, Darin, 2000, Prometheus Wired, Vancouver: UBC Press.

Canadian Internet Policy and Public Interest Clinic (2007) “Digital Rights Management and Consumer Privacy,” September 2007, http://www.cippic.ca/sites/default/files/CIPPIC_Report_DRM_and_Privacy.pdf

Castells, Manuel (2001) The Internet Galaxy: Reflections on the internet, business, and society. Oxford University Press: Oxford.

Castells, Manuel (2010) The Power of Identity 2nd edition. (Malden, MA. Blackwell Publishing)

Clinton, Hillary Rodham, “Remarks on Internet Freedom,” January 21, 2010, http://www.state.gov/secretary/rm/2010/01/135519.htm

Deibert, Ronald and Rafal Rohozinski (2010a) “Beyond Denial: Introducing Next-Generation Information Access Controls” in Access Controlled, Ed. By Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski and Jonathan Zittrain. MIT Press: 2010, http://mitpress.mit.edu/catalog/item/default.asp?ttype=2&tid=12187&mode=toc

Deibert, R. and Rohozinski, R. (2010b) “Liberation vs Control: The Future of Cyberspace,” Journal of Democracy, 24, 1 (October 2010), pp. 43-57.

Denegri-Knott, Janice (2004) “Sinking the Online ‘Music Pirates:’ Foucault, Power and Deviance on the Web.” Journal of Computer Mediated Communication. 9 (4) July 2004



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