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= The Rise, Fall, and Rise of ACTA?

The Rise, Fall, and Rise of ACTA?

Peter (Jay) Smith PhD, Political Science, Athabasca University: jays@athabascau.ca

Peer-reviewed by: Michael Geist, University of Ottawa; Mark McCutcheon, Athabasca University.

Abstract / Résumé

In July 2012 the European Parliament defeated the Anti-Counterfeiting Trade Agreement (ACTA). Supposedly the attempt to impose global norms on intellectual property rights and thereby restrict digital copyright was dead. Or was it? This paper argues that the spirit of ACTA may live on in a host of other trade agreements currently being negotiated. That is, ACTA, or even more restrictive versions of it, could be imposed through the back door at least upon weaker states through bilateral agreements with the United States and the European Union. The result could be a spaghetti bowl of rules on digital copyright with some countries enjoying more digital rights, online freedom, and privacy than others.

En juillet 2012, le parlement européen rejetait l'Accord commercial anti-contrefaçon (ACAC). Ainsi prenait fin supposément la tentative d'imposer des normes mondiales sur les droits de propriété intellectuelle et de restreindre les droits d'auteur en milieu numérique. C'est du moins ce que l’on croyait. Cet essai soutient que l'esprit de l'ACAC est peut-être encore vivant dans une gamme d'autres accords commerciaux en cours de négociations. C'est-à-dire que l'ACAC ou des versions encore plus restrictives pourraient être imposées en catimini, du moins à des états plus faibles, par l'entremise d'accords bilatéraux avec les États-Unis et l'Union européenne. Le résultat pourrait être un enchevêtrement de règles sur les droits d’auteur en milieu numérique alors que certains pays pourraient profiter plus que d’autres de droits numériques et de liberté et de confidentialité en ligne.


Anti-Counterfeiting Trade Agreement (ACTA), neoliberalism, neoliberal discipline, the new constitutionalism, intellectual property rights, digital copyright, global governance, multilateralism, plurilateralism, bilateralism, the World Trade Organization, TRIPS, the World Intellectual Property Organization

Introduction: wither/whither ACTA?

On July 4, 2012 there was great rejoicing among European activists espousing a free and open Internet. Their nemesis, the Anti-Counterfeiting Trade Agreement (ACTA), had been overwhelmingly defeated—478 against, thirty-nine in favour, 165 abstentions—by a European Parliament flexing its political muscle as the first European Parliament to use its powers under the Lisbon Treaty to reject an international trade agreement. Opponents such as the Green Party celebrated its demise as a victory for the democratic process.

Figure 1: Hello Democracy, Goodbye ACTA. Courtesy of European Greens http://europeangreens.eu/news/hello-democracy-goodbye-acta

Hello Democracy, Goodbye ACTA. Courtesy of European Greens http://europeangreens.eu/news/hello-democracy-goodbye-acta

Rick Falkvinge, founder of the Swedish and first Pirate Party, was also jubilant, proclaiming this was a democratic moment and that "the deceptive treaty is now dead globally" (2012).

The representatives, Falkvinge notes, had been spurred to action by massive and successful demonstrations throughout Europe in January 2012, demonstrations, in turn, spurred on by the anti- Stop Online Piracy Act (SOPA) and Protect Intellectual Property ACT (PIPA) protests in the United States (Sell 2013). Opponents of ACTA feared it was an attempt by the US and the European Union (EU) to globalise their norms of digital intellectual property rights. ACTA, opponents thought, would restrict Internet freedoms, innovation, and privacy by ratcheting up (that is, maximising) global norms on intellectual property rights (IPR), norms based to a considerable extent on US legislation, the 1998 Digital Millennium Copyright Act (DMCA). There was great relief, then, when the European Parliament dealt what was perceived as a fatal blow to ACTA.

While dead as a global treaty, ACTA itself was not necessarily dead. It could come into force as a treaty among the US, Japan, and a host of smaller states. The thought among Europeans initially was, though, that ACTA was a dead letter in Europe. However, within days of its defeat, there was a growing realisation that the spirit, if not the letter, of ACTA may, in fact, live on in Europe and elsewhere but under different guises. For example, Michael Geist, a Canadian copyright expert, noted on his widely read blog that provisions of ACTA could be smuggled in through the backdoor by means of the Canada-EU Trade Agreement (CETA). In a comparison, Geist noted that a leaked draft of CETA had simply cut and pasted provisions of the defeated ACTA into the draft. ACTA as proposed included the following provisions which created considerable alarm:

  • Liability of internet services providers (ISPs), raising the fear that they would have to monitor the Internet communications of their customers, in turn raising issues of privacy and the possibility ISPs could 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.

After an uproar online, an EU spokesperson later stated that offensive ISP liability provisions had been dropped. This was acknowledged by a technical summary of CETA released by the Canadian Government (Geist 2013a). This, then, would seem to end the matter. At the same time, however, Canada was engaged in the negotiation of the Trans-Pacific Partnership Agreement (TPP) with the United States and other countries of the Pacific. A leaked document indicated that the TPP had provisions similar to, if not stronger than, ACTA on ISP liability and the denial of access to the Internet (Kaminski 2013). While this was a leaked and not a final document, what it indicates is a relentless campaign with a long term focus, particularly by the United States to maximise intellectual property rights (IPR) by a wide variety of means. If stopped or defeated in one venue, proponents of strengthened IPR can go to or create another venue.

So the question remains, wither/whither ACTA and the campaign to ratchet up protection of the intellectual property rights of major producers? This paper argues that while ACTA may be dead, its spirit does live on in the form of its provisions—or stronger ones—reappearing in other treaties currently being negotiated. The Electronic Frontier Foundation may have come very close to the mark when it speculated not long after the defeat of ACTA in Europe, that:

It seems that toxic IP policies will get transplanted into agreement after agreement, and from large multi-lateral fora, such as the World Intellectual Property Organization, to secretive plurilateral or bilateral agendas. They will continue doing so until their desired policies get passed under the radar without the public or civil society noticing. (Sutton 2012)

In brief, while ACTA may be dead, its spirit lives on. Today the United States and the EU in cooperation with Japan are seeking out multiple venues whereby they have disproportionate leverage over trading partners wanting access to their markets to strengthen protection for their IPR, particularly in terms of digital copyright. Thus power politics have become more important than ever in the negotiation of trade and investment treaties, meaning that restrictions on copyright and Internet freedom may be even more severe for certain countries than if they were negotiated in large multilateral fora, such as the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO). Instead of shifting from one multilateral forum to another when their aspirations are frustrated, the US and EU are at work on many fronts providing themselves a distinct advantage over the more limited capacities of opposing civil society organisations. Both the US and EU wish to avoid the widespread clashes between democracy and corporations so evident in the SOPA-PIPA and ACTA Europe debacles. Finally, despite the defeat of ACTA and the ongoing economic crisis in Europe, neoliberalism has not faced a discursive crisis. By neoliberalism, I refer to the definition of David Harvey who sees it as a theoretical and elite-political project that "proposes that human well-being can best be advanced by liberating individual entrepreneurial freedoms and skills within an institutional framework characterised by strong private property rights, free markets and free trade" (2005, 2). In particular, claim De Ville and Orbie, "[w]ithin the European Union (EU), the neoliberal trade policy has not only survived the global financial crisis (GFC) and Eurozone crisis, but has been reinforced throughout these crises" (2013, 1). This trade policy includes a strong emphasis on the maximising of norms for IPR. The same could be said for the US. In sum, this paper argues the battle for copyright and a free, expressive Internet is far from over.

This paper develops as follows. The first section of the paper will provide a brief overview of the debate over copyright and the continuing fear by copyright owners that in a digital age their ownership rights may be violated. Here I discuss how copyright owners and governments operate from a perspective of threat and risk and have sought to discursively frame these threats to the public and to politicians in terms of "piracy" and "theft." The second section outlines how the governance of copyright in a digital age cannot be done by states acting alone but only within a system of global governance. Here states and corporations act in concert to impose neoliberal discipline on states and their populations in terms of a "new constitutionalism," which has ratcheted up protection for IPR in a process known as "policy laundering." Both corporations and states perceive benefits by acting in concert to prevent digital "piracy." In doing so, corporate anxiety over loss of their IP and revenues is reduced and states obtain greater measures of control over the web and their populations at a time when digital technologies and social media threaten to disrupt state power. The third section discusses how a "transnational historic bloc" (Gill 1995, 400) led by the United States was initially successful in imposing ratcheted-up norms of IPR through multilateral organisations such as the WTO, but since that time has been challenged and rebuffed by resistance movements and other states. The strengthening of protection for IPR is, I argue, part of a long term historical project of which ACTA and other continuing bilateral and regional efforts are but the latest examples. Next, ACTA and the resistance to it are discussed. Following this is a discussion of the staying power of neoliberalism and neoliberal trade policy even after the defeat of ACTA. Finally, the article will consider the appearance of ACTA-like provisions through the back door in other agreements.

Uncertainty, copyright, security, and risk

Those states and corporations advocating enhanced protection for intellectual property, copyright in particular, have a far different image of the Internet than that which was so prevalent in its early years. Then the idea was of the Internet as a technology of freedom first articulated in the rallying cry of hackers (not criminals or crackers)[1] that "information wants to be free." 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 with the emphasis on the user rather than the owner of digital property that underpins, for example, the open source software movement. The notion was one of cyberspace as a free space, unregulated, if not anarchic (as in self-regulating), and de-centralised, with a minimal role for the state.

Today, this perspective, while still having a strong cultural resonance, has been challenged by a depiction of the Internet as possessing a dark, menacing side (Morozov 2011). Rather than self-regulating, the Internet is seen as existing in a Hobbesian state of nature (Deibert and Rohozinki 2010a), full of hate, extremism, terrorism, surveillance, pornography, threats and risks. While Hobbes’s state of nature was to be regulated by a Leviathan, today the Internet, once perceived as being beyond the ability of a state to regulate, is becoming susceptible to control, a control not by one state alone but by states acting in cooperation with forces in the private sector. As Deibert and Rohozinki put it, "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).

The owners and exporters of intellectual property share the notion of the Internet as having a darker side of risks and threats. For those exporters of intellectual property, primarily the United States, the EU, and Japan, there is a sense that their IPR are at risk. Here one must have some sense of how IPR are created. The essential purpose of IPR 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, a role historically that of the state. The argument is that without security for economic rewards, there would be little incentive to innovate within a capitalist society. 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). In brief, an unregulated Internet represents an inherent threat to owners of digital property. This fosters a sense of a loss of control, which in turn has led to 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" (2000, 151) and has led to an ongoing effort to establish and strengthen the international enforcement of IPR. According to Drahos:

From an economic point of view the private property right over an asset must be accompanied by a belief that property right is secure and that the economic benefits of the asset will actually flow to the owner. This in turn requires an enforcement mechanism of some kind. (2004, 53)

This effort to create enforcement mechanisms beyond the state has been spearheaded by the United States, which has a considerable competitive advantage in the export of intellectual property. In 2000, the United States had a fifty-one percent share of exports of royalties and license fees, by far the largest in the world, but this share had started to decline in relative terms over the next decade with only a thirty-nine percent share by 2012 (these figures were calculated from Table 5.2 Exports and imports of services -royalties and license fees [United Nations 2012]). This was still large, but in relative terms, the EU was in ascendancy. For the United States, the imperative of maintaining its competitive advantage in an uncertain, if not threatening, digital world has led the US, in cooperation with other major exporters of intellectual property, the EU, and Japan to efforts to ratchet up and impose its domestic norms of IPR on a global basis. States, by enhancing IPR, also protect an important part of the economic base of state power.

This emphasis on the need for enhanced protection of digital intellectual property against risks and threats needs to be placed within the growing literature on security and risk, which has moved beyond military concerns to focus on economic, ecological, and cultural concerns. Here the work of Foucault is useful. For Foucault, risk is socially produced and is subject to surveillance, discipline, and control by means of governmentality, an ensemble of various societal components, public and private (1991). According to Foucault, knowledge in the form of institutions, techniques, practices, procedures, and analysis is used to govern (shape, discipline, and control) the entire population. The purpose is not so much to tame risk, but to attribute a quantifiable degree of risk to different sub-groups to render them manageable. Foucault's approach lends itself to recognising not only the social construction of security and risk, but the social construction of the source of risk in intellectual property protection and the risk-group (pirates) needing to be brought under social control. This construction also lends itself to understanding how the debate about the need for IP enforcement has been framed.

While the owners of IP perceive real threats and risks in cyberspace, it must be acknowledged that a sense of risk can be deliberately fostered. That is, risk and insecurity may not originate so much from a risk-group as be deliberately promoted by political and societal leaders to bring about desired policy outcomes. Susan Sell, for example, argues that "advocates of the IP enforcement agenda have engaged in a shrill public relations campaign to frighten people into accepting their agenda" (2010, 22). Here the social construction of insecurity is intended to heighten the sense of risk even though the actual risk may be quite low. Collective insecurity is thus a "social and political construction" which focuses on "particular segments of the population or even society as a whole" (Béland 2007, 320).

Global governance, new constitutionalism, and disciplinary neoliberalism

In a digital age, the flow of information moves readily across borders. As a result, the risk to copyright and IPR cannot be managed within a single state, even one as powerful as the United States. That is, states must cooperate with other states and the private sector to ratchet up protection for IP, hence the move from governments to global governance. According to Castells, we are witnessing the emergence of a networked society based on the information-technology revolution. Castells refers to global governance in terms of networks whereby private non-state actors, non-governmental organisations, and, in particular, corporations play an increasingly important role in decision-making (2010a).

This emphasis on global governance is useful in illustrating the complexity and heterogeneity of power relations that increasingly govern IPR, in particular, copyright. That said, the state does not disappear in the global governance of copyright. For example, the state prefers to work through private nodes of power, and internet service providers to perform its policing functions in terms of providing increased intellectual property protection by means of "invisible handshake" (Birnhack and Elkin-Koren 2003). Here the prerogative powers of the state are delegated to private entities; for example, to ISPs to regulate content on the Net or to internet intermediaries to exercise "notice and takedown" of perceived violations of copyright. This represents a growing trend of the public-private regulation of expression on the Internet seen by many as encroaching on freedom of expression (Farrand and Carrapico 2013).

Global governance, while networked, is characterised by hierarchies of power and dominance. This stress on power imbalances in the governance of global capitalism and intellectual property is discussed by Stephen Gill in what he describes as the "new constitutionalism" with its emphasis on disciplinary neoliberalism. According to Gill, "What is emerging is a politics of supremacy rather than a politics of justice or hegemony" (1995, 401). By supremacy, Gill is referring to "rule by a non-hegemonic block of forces," public and private, rooted "in a market-based transnational free enterprise system" (1995, 401). However, free enterprise does not mean free competition as depicted in neoclassical theory. Rather, the system is characterised "by oligopolistic neoliberalism, oligopoly, and protection for the strong and socialization of their risks, market and discipline for the weak" (Gill 1995, 404).This is particularly true in terms of added protection for digital intellectual property rights designed, not to enhance competition, but to protect the competitive advantage of dominant states. The result is a state-civil society complex of governmentality imposing, in Foucauldian terms, disciplinary neoliberalism on states and their populations, a complex which has become institutionalised at the global (multilateral) level, regional, and bi-lateral levels by means of what Gill describes as the "new constitutionalism" (1995, 411). Gill argues that "central...to new constitutionalism is the imposition of discipline on public institutions, partly to prevent national interference with the property rights and entry and exit options of holders of mobile capital with regard to particular political jurisdictions" (1995, 412). A key purpose of new constitutionalism is "to insulate policy-making from democratic politics" (McBride 2010, 22). The result is a more authoritarian state dominated by the executive branch of government.

In submitting to these "extra-national" agreements that they, as states, create in partnership with the corporate sector, states agree to provisions that limit the parameters of domestic policy-making. While neoliberal discipline espouses free trade and investment, it also includes protectionist mechanisms such as enhanced intellectual property rights, both in terms of patent and copyright. Implicit in Harvey’s definition of neoliberalism is the tension among free trade, free markets, and protection of property present in the new constitutionalism. New constitutionalism is evident in a plethora of institutional arrangements, some regional (for example, the North American Free Trade Agreement [NAFTA]), some global (WTO), and others bi-lateral. As important as new constitutionalism is in disciplining states, it is necessary, as Foucault argues, to understand that states, in turn, impose neoliberal discipline on their populace (1991). This in turn has led to increased resistance to state efforts to maximise copyright protection, which are increasingly perceived by civil society organisations as attempts to curtail internet freedoms.

The new constitutionalism efforts to maximise IPR in copyright through multilateral, regional, plurilateral, and bi-lateral means are discussed in what follows. Here I will argue that new constitutionalism is unstable and subject to challenge by other states and resistance by social movement organisations. The ability of the United States to dominate new constitutionalism in terms of the strengthening of IPR in copyright is very much in doubt, particularly at the multilateral and plurilateral levels, the latter of which included ACTA. However, the discourse of neoliberalism in trade policy remains unchallenged in the US and the EU governments and both remain committed to new constitutionalism by other means, such as bilateralism.

New constitutionalism in terms of its pursuit of strengthening norms of copyright protection has remained consistent in the intent of large intellectual property exporters, such as the United States, to curtail Net freedoms by means of more restrictive copyright and anti-circumvention measures through the Anti-Counterfeiting Trade Agreement and more recent bilateral trade agreements among the US, the EU, and other countries. Once concluded, these bilateral agreements with their enhanced protection of IPR (like the Australia-United States Free Trade Agreement, for example [2004]), can lead to reforms of national legislation conforming to these new standards, an example of neoliberal discipline at work.

Importantly, however, there are distinct phases to the process of the imposition of new constitutionalist mechanisms of IPR, but the thrust in direction remains constant. First, there was a phase in which the US, with the assistance of the EU and Japan, both intellectual property exporters, built on a series of bilateral and regional agreements which created higher standards of IPR, primarily in patents but also including copyright, and leveraged these standards into a successful agreement at the multilateral level at the WTO. Second, there is another phase that began with deadlock between developed and developing countries at the multilateral level along with increased resistance from civil society resulting in a return to bilateral, regional, and now plurilateral agreements whereby negotiations take place in a context of asymmetrical power between the US, the EU, and weaker developing countries, and developed countries with smaller sized economies. Both the US and the EU, in their own particular fashion, have employed this approach resulting in a plethora of bilateral agreements. One blogger captured the spirit of this approach in the following way:

The operating principle of international copyright law might as well be this: never put all of your eggs in one basket. Dispersion is the key—multiple fronts of attack, one after another. Activists and critics will see the maneuvers; but, as with any war of attrition, the opposition's momentum dissipates. (Pangburn 2013)

Thus, while ACTA may be defeated in one venue, that is, the European Parliament in a democratic moment disrupting neoliberal discipline, its provisions may live on in a host of new, primarily bi-lateral agreements. This was not what the advocates of ACTA had intended. Rather, the intent was for ACTA to emulate the successful negotiation of the 1994 World Trade Organization agreement Trade Related Aspects of Intellectual Property Rights (TRIPS) whereby success at the bilateral and regional levels was leveraged into success at the global level. ACTA, as a plurilateral agreement, was intended to be expanded to include parties that had not initially participated in the negotiations and to have global effect.

Phase one: from bilateralism to multilateralism

The first phase in the US-led effort to create new constitutionalist mechanisms of IPR in the form of the global ratchet began in the 1980s with a series of bilateral agreements with other countries, agreements that were, in turn, ratcheted up into successful regional and multilateral agreements. The US employed its asymmetrical advantage in economic power (Drahos 2004; Morin 2009) to pressure other countries (e.g. Korea, 1986) to accede to a free trade agreement (FTA) which entrenched minimum (but not maximum) standards of protection for IP on terms highly favourable to the US. The US intent was that these agreements would lead to regional then multilateral agreements to create a global system of IP based largely on US standards, standards which would be imposed on the governments of states and their populations.

Bilateral agreements → Regional Agreements → Multilateral Agreements

Each agreement would permit subsequent agreements to establish higher standards of protection at the bilateral, regional or multilateral level. The overall effect would, as far as the US was concerned, be a virtuous cycle of agreements strengthening global intellectual property standards.

Figure 2: The Virtuous Cycle of Enhanced Intellectual Property Protection. Based on Drahos 2004, 57.

The Virtuous Cycle of Enhanced Intellectual Property Protection. Based on Drahos 2004, 57.

Because of its importance, and the fact that ACTA was intended to emulate it in terms of eventually becoming a global treaty, TRIPS merits a brief discussion. 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. TRIPS established a global harmonisation of IP protection and enforcement based not on a consensus of the WTO's members (developed and developing), but rather on the standards of the richest countries, in particular the US, EU, and Japan.

TRIPS, importantly, also includes a dispute settlement mechanism and enforcement procedures. Sell makes clear that it was twelve corporations that, in cooperation with the USTR, the EU, and Japan, "made public law for the world" (1999, 172). [2] In sum, influential US firms with high stakes in the intellectual property sector, primarily patents like pharmaceuticals, mobilised an international coalition of US, European, and Japanese firms, and the US, the EU, and the Japanese governments to protect their competitive advantage in IP in terms of trade. The corporate executives of twelve US firms identified a problem ("piracy") in the US's growing trade deficit and framed a solution imposing disciplinary power over deviants by means of TRIPS (Drahos and Braithwaite 2002).

In brief, TRIPS gave most of what its corporate proponents asked for (Sell 1999), imposing disciplinary neoliberalism by requiring all 150 members of the WTO to enact national legislation enforcing minimal standards of intellectual property protection. Yet, its bias in favour of the exporters of intellectual property was obvious from the start (Henry and Stiglitz 2010).

Almost immediately after TRIPS was passed, corporations began to press for further protection of IPR, particularly in terms of digital regulation seen as being weak. The emergence of the World Wide Web and its ability to reproduce and distribute digital products had heightened the sense of insecurity and risk among exporting countries and the corporate owners of digital products. Once again the social construction of risk in the increasing emphasis on fear of "piracy" and theft underlay the rhetoric of corporations apprehensive at the increasing ease by which digital artefacts could be reproduced by ever increasing numbers of people (May 2000). This time, however, negotiations took place at the World Intellectual Property Organization (WIPO). The WIPO is a United Nations agency, 1) specialising in the administration of patents, 2) providing technical support to developing countries to comply in the protection of IPR, and 3) developing further governance measures including greater protection for copyright. WIPO became the venue in which the WIPO Copyright Treaties (WCT) was approved in 1996.

The WCT is considered by many as a TRIPS Plus agreement in that it strengthens protection for copyright. The WCT "provides copyright holders exclusive rights over material in the on-line environment" (Smith 2007, 44). Moreover, the WCT provided another layer of protection for copyright particularly in terms of the legal recognition and protection of digital rights management (DRM), or technological protection measures (TPMs) as they are also known. DRM is a technological means by which either software or hardware can be employed by the owners of IP to prevent unauthorised access, use or distribution of digital content. The WCT effectively prohibits the circumvention of DRM but at the same time it did affirm "the need to maintain a balance between the interests of authors and the larger public interest, particularly education, research and access to information," a balance that is now perceived by many as having disappeared, energising strong resistance (qtd. in Samuelson 1997, 375). A UK Commission Report on IP and Development expressed concern that it is "not clear how reasonable requirements of 'fair use' will be guaranteed." It went on to caution "developing countries should think carefully before joining the WIPO Copyright Treaty" (Smith 2007, 34). Here developing countries might consider the prohibition on circumvention being put into practice in a number of countries which can block, if not criminalise, all types of access and use, whether or not they infringe upon copyright. People with print disabilities are facing difficulty accessing copyright material they have purchased where TPMs have been imposed (Australian Government 2014). Owners of specific regionally coded DVDs are finding that they are not able to view them in other regions without being in violation of the law.

The WCT represents the last hurrah of the US, EU, and Japan to expand IPR, this time copyright, on a global scale through existing multilateral institutions. Resistance to further enhancement of intellectual property had begun to build shortly after the conclusion of the TRIPS agreement. This resistance consisted of an eclectic mixture of non-governmental organisations, academics, individuals and governments. Developing countries were to lead the first stage of resistance. The WIPO which had responsibilities for the successful implementation of patent and digital copyright treaties had become perceived by developing countries as being too fixated on the concerns of rich developed countries at the expense of poorer developing countries. For example, the WIPO stressed the provision of technical assistance to developing countries to help them better implement the TRIPS agreement by, for example, creating and modernising IP systems (Shashikant 2005).

While strong protection of IPR, particularly patents and, increasingly today, digital artefacts, is clearly in the interest of richer countries, for developing countries it became seen as a means of paying rent to corporations and rich countries. According to May, "for many developing countries the current TRIPS-mandated system of global protection for IPRs involves significant transfers of wealth (via licence fees and market prices) from their countries to the richer members of the WIPO" (2000 95). Overall, there were, according to one calculation, only six net beneficiaries of the TRIPS patent regime. Of the six (the US, Germany, France, Italy, Sweden and Switzerland), the US had six times the wealth transfer of Germany, the second best beneficiary (May 2000).

The WIPO’s strong emphasis on the protection and enforcement of IP rights alienated many developing countries, in particular Brazil and Argentina. In 2004, led by Brazil and Argentina, a group of 14 developing countries including India formed what has become known as the "Friends of Development" (FOD), which called for a WIPO Development Agenda. This call received wide support from civil society, including economists, Nobel laureates, and NGOs (Shashikant 2005). The US resisted but the FOD persisted, demanding the Development Agenda precede discussion on patents. Elsewhere, at the WTO, Brazil and India "have consistently blocked the inclusion of enforcement as a permanent agenda item" (Sanders et al. 2011, 8). Brazil, Argentina, and India have come to play key roles in the Access to Knowledge (A2K) movement which includes AIDS activists, open source software programmers, educators, librarians, NGOs and developing countries.[3] Underlying the A2K is a strong belief that knowledge should belong in the commons (Kapczynski 2010, 18). The A2K played a key role in de-legitimising both the WTO and the WIPO as venues for the expansion of IPR.

In recent years a series of overlapping movements based in civil society has taken the lead in resisting restrictions on digital technologies. A key part of this resistance has been the open source movement (OSM) with its hacker culture described previously. The emphasis of open source is on user control of digital technologies. With an expanding base of corporations incorporating open source into their industrial operations, the OSM is acquiring economic prominence. Google, for example, uses open source software extensively.

The OSM with its emphasis on freedom, openness and user control has played a key role in energising what has become known as the digital rights movement, described by Postigo as "a concerted international effort by activists, hackers, student groups, academics and social movement organisations [SMOs] to ensure digital media users rights" (2009, 3). This movement, while it overlaps with the A2K and OSM, differs from both. Like the A2K it believes that knowledge should belong to the commons but does not emphasise patents. According to Postigo, the digital rights movement combines elements of the OSM with focus on the user, freedom, and openness, with the concept of fair use or fair dealing (2006), whereby users, whether as consumers or producers of content, can freely "access and use copyright content for creative and personal purposes" (2006, 3).

The movement is an amalgam of SMOs, for example, the Electronic Frontier Foundation and the Free Software Foundation: as well as key individuals such as Richard Stallman of F2F, Lawrence Lessig, creator of the Creative Commons license, and John Perry Barlow who serve on a number of boards of SMOs, and a host of European advocacy NGOs such as La Quadtrature. Hackers, while not a part of the SMOs per se, serve a vital role in providing technological resistance to restrictions on copyright use. These SMOs resort to a variety of political opportunity structures including courts, legislatures, protests and increasingly transnational meetings. While not always successful the movement has continued to grow and offers increasingly potent resistance at various levels of governance to new restrictions on digital media use, particularly as perceived in the ACTA.

Phase two: from the breakdown of multilateralism to bilateralism and failed plurilateralism (ACTA)

Increased resistance at the WTO (and the WIPO) for the past decade has resulted in "the failure of multilateral trade negotiations where developing and developed countries are locked in an impasse in part because of their conflicting priorities" (Gathii 2011, 439). The result is that bilateral and regional agreements became the alternative means for the United States and EU to negotiate greater protection for digital copyright. This shift is part of the well-known pattern of forum shifting. Forum shifting is a process by which a negotiating agenda is moved from one venue or organisation to another friendly venue or organisation, often, but not always, due to increased resistance. 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" (2004, 55-56). 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 where the state enjoys a power advantage, for example, from one multilateral forum to another. This is a cat and mouse game exercised by those seeking to maximise IP protection. The negotiation of TRIPS at GATT (now WTO) occurred because of a perception that the WIPO did not have the ability to successfully negotiate the desired treaty. WIPO, which had tried to refurbish its image, became the alternative to negotiate the WCT when the WTO faced increased criticism by developing countries over the one-sided nature of the TRIPS.

The emphasis on bilateral and regional agreements by both the US and the EU is the latest example of forum shifting. The emphasis, however, is not on negotiating with large violators of digital copyright such as Russia and China but on countries where the US and EU have a disproportionate power advantage. In sum, it is much easier to intimidate small countries by means of bilateral FTAs to obtain desired trade objectives than it is through arduous and uncertain multilateral agreements (Gathii 2011). The shift to bilateralism when multilateralism has failed has been described as a "grotesque" means for making gains because of the distinct power disadvantage smaller countries have at the negotiating table compared to powerful countries (Grain qtd. in Morin 2009, 7).

That said, bilateral FTAs, or Preferential Trade Agreements (PTAs) as they are also known, have proven to be an effective means used by the US and the EU to increase copyright protection. These agreements are complex and detailed with provisions on many other aspects of trade and investment and copyright is often not the primary concern of the countries being negotiated with. The United States has often used the Digital Management Copyright Act (DMCA), the legislation ratifying and enabling legislation of the WCT, as a basis of copyright provisions in FTAs with other countries (in 2001 the European Union approved the European Copyright Directive implementing the WCT). The DMCA provides strict and sweeping protection for digital property, effectively limiting the fair dealing provisions of the WCT noted above (May and Sell 2006, 182). In an example of the "invisible handshake," a transfer of the policing function from the public to private nodes of power, Section 512 of the DMCA had a notice and take down provision which granted service providers liability protection for removing content claimed to be infringing on the right of copyright owners.

Among the countries that the US has pressured to accept DMCA provisions in an FTA is Australia. As Rimmer notes, "the AUSFTA required Australia to adopt a TPM regime very similar to that established in the DMCA" (2006, 14). Moreover Australia is required to provide civil and criminal liability for the circumvention of any TPM (DRM) (Rimmer 2006). Australia also requires ISPs "to expeditiously remove" any allegedly infringing copyright material "in good faith based on receiving a notice from copyright owners" (Rimmer 2006, 21). Jordan, Singapore, Chile and Morocco are other countries with similar provisions.

Along with the US, the EU embarked on an intensive round of bilateral and regional FTAs which include, among other items, provisions on copyright. According to the 2006 Global Europe strategy "[t]he EU should seek to strengthen IPR [Intellectual Property Right] provisions in future bilateral agreements and the enforcement of existing commitments..." (qtd. in Shabalala 2008, 3). Today, this is a requirement of the European Commission. While the EU pushes for its equivalent of the DMCA in the form of the European Copyright Directive (2001) it is not always successful. What it does obtain, however, does strengthen IPR for the EU. For example, the Cariforum (Caribbean Forum), representing fifteen Caribbean countries, in 2008 approved a regional FTA with the EU with extensive provisions on copyright, most of which were proposed by the EU. The Cariforum Economic Partnership Agreement (EPA) requires compliance with the WIPO 1996 copyright treaty with its provisions for technological protection. The EU failed, however, in its insistence that public interest provisions of the WCT be omitted. More recently, the EU's recently implemented FTA with Peru similarly calls for the application of the WIPO copyright treaty in terms of TPMs (European Union 2013, 277).

ACTA: the next step

It is within this wave of successive bilateral and regional FTAs by the United States and the EU that the ACTA must be placed. As with the TRIPS agreement, it was hoped that this wave of agreements would result in a successful global treaty strengthening protection for digital copyright. However, given that the WTO and the WIPO were no longer friendly environments to the enhancement of IPR, the US, EU and Japan forum shifted once again, creating their own forum outside of recognised multilateral bodies. As an EU analysis notes, the ACTA "was born out of the frustration of the major industrialised economies with progress and monitoring and norm-setting on the enforcement of intellectual property rights in multilateral fora"(Sanders et al. 2011, 8). Sell agrees with this analysis, arguing that what she describes as "IP maximalists":

Always have seen TRIPS as a floor, not a ceiling. Ever since the WTO TRIPS negotiations that ended in 1994, they have been using every opportunity to increase intellectual property protection and enforcement beyond TRIPS. They have been relentless, focused, and have devoted untold resources to their quest for higher global standards of intellectual property protection and enforcement. (Sell 2008, 4)

Much has been written about ACTA already. What is emphasised briefly here are its initial bargaining partners, concerns about process and content, and the controversy that remains about whether ACTA is a document with teeth. The parties driving ACTA negotiations in 2008 were the US, EU, Switzerland and Japan. ACTA, in fact, built upon a proposal Japan made in 2005 for a "Treaty on Non-Proliferation of Counterfeits and Pirated Goods" (Mercurio 2012). Other countries participating at the first round of negotiations in Geneva in 2008 included Australia, Canada, Jordan, Mexico, Morocco, New Zealand, Republic of Korea, Singapore, and the United Arab Emirates. These countries had nothing in common other than that they were FTA partners with the United States (Canada and Mexico via NAFTA 1994, Jordan 2001, Australia 2004, Singapore 2004, Morocco 2006), were awaiting approval (Republic of Korea 2010), were in the process of negotiating a treaty (United Arab Emirates), or were intending to, as in the case of New Zealand. The AUSFTA agreement even required Australia to participate in future negotiations such as the ACTA where stronger IP provisions were intended to be included. Following the pattern of TRIPS, the only other parties that had access to the secret negotiations were a select number of corporations, leading copyright industry rights holders.

Civil society organisations were concerned: 1) that negotiations were top secret, 2) that ACTA contained certain provisions such as liability of ISPs, a three strikes and you are out rule, 3) and that Internet service providers would also have to enforce what are known as provisions for "notice and take down." It is important to point out that, according to the Canadian Library Association, "...ISPs are not just telephone and cable companies. Frequently school boards, colleges and universities, and sometimes public libraries serve as ISPs" (2008). These are provisions of the DMCA which permit a copyright owner to request websites to take down infringing material in order to avoid liability.

These provisions benefitted and strengthened the state as well as corporations by permitting the state through online service providers to exercise surveillance over its population and to deny dissenters access to the Internet. Other key elements of the proposed treaty that caused alarm included:

  • Stricter provisions on technological protection measures (TPMs) or digital locks modelled on 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 010)
  • Criminal responsibility for IPR infringement "for purposes of commercial advantage or private financial gain (no matter how low the number)." Criminal liability could include willful infringements without intent of financial gain if they negatively affected the owner of copyright (Weatherall 2009, 12).

Finally, concern was expressed about the proposal to have a supranational institution to implement and oversee enforcement of its provisions.

There were two stages of resistance; the first, primarily dominated by US social movement organisations which put considerable pressure on the negotiators to be more open and transparent and to drop offending provisions, occurred in the fall of 2010. The second stage was European-centric and was inspired by the successful resistance to the Stop Online Piracy Act (SOPA) and Protect Intellectual Property ACT (PIPA) introduced in the US House of Representatives and Senate respectively in 2011, and led to the ultimate defeat of the ACTA by the European Parliament on July 4, 2012.

Considerable controversy remains, however, as to whether ACTA is still a threat to the privacy and civil liberties of digital users. Geist can be quoted supporting both perspectives. In the first stage of resistance US SMOs were joined by SMOs in Canada, Australia, New Zealand, Europe, the fledgling Pirate Party with two seats in the European Parliament, and the European Parliament itself which, on March 10, 2010, by a margin of 663 to thirteen, passed a motion strongly criticising ACTA (2010). Exactly what influence this opposition had is unclear but pressure was visibly building and in October 2010 the negotiators of ACTA made what appears as a volte face, dropping 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]" (Sanders et al. 2011). A detailed study of the agreement by Australian copyright scholar and noted critic of the ACTA, Kimberlee Weatherall, argues that in terms of achieving its two primary goals of establishing a new standard of IP enforcement and improving international cooperation in IP enforcement, 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). According to Geist, the United States caved on the Internet chapter which "must be seen as a failure by the US, which clearly envisioned using ACTA to export its DMCA-style approach" (2010). Despite arguments that content had been watered down, fears persisted in Europe not only with its secretive process but with its perceived content.

This led to the second stage of protest which occurred in Europe during the ratification process. In part, resistance was stimulated by the fierce reaction to the proposed Stop Online Piracy Act (SOPA) and (Protect Intellectual Property ACT) introduced in the US House of Representatives and Senate respectively in 2011. SOPA and PIPA had a similar purpose: to make it more difficult for sites, particularly those outside the US, to traffic in US copyrighted material such as movies or counterfeit products (e.g. drugs, watches). On January 18, 2012 there was a massive online backlash by websites large and small who feared censorship and encroachments on freedom of speech. Wikipedia, Reddit, and approximately 7,000 other sites organised a service blackout. In addition, there were massive petition drives, boycotts of companies supporting the bills, and denial of service attacks on corporate proponents of the legislation. The SOPA PIPA backlash was successful and the US Congress dropped the legislation. According to Sell "[a]s astonishing as the victory of the anti-SOPA/PIPA coalition was, more surprising still was the ripple effect that the US SOPA/PIPA backlash created"in Europe (2013, 80).

One of the leading critics of ACTA influential in the European debate was Geist, this time arguing that ACTA was still a threat. Geist acknowledged that while the final version of ACTA made many of its "provisions permissive rather than mandatory... the experience with other treaties indicates that permissive language is gradually transformed into mandatory, best-practice language" (Geist 2012b). Strong fears remained in civil society that, if ratified, ACTA would threaten freedom of speech and openness on the Internet. According to leading opponents, the Electronic Frontier Foundation and European Digital Rights, these were some of the primary concerns about ACTA, fears that remain today:

  • ISPs would be turned into copyright police with privatised enforcement outside the rule of law.
  • There would be massive surveillance of users in a hunt for digital copyright infringers, a violation of privacy and due process.
  • Digital rights management (technological protection measures) would have to be imposed.
  • Criminal sanctions could be imposed even for non-commercially motivated infringement.
  • Innovation would be stifled.
  • An unelected enforcement committee would be created. (EFF 2013; European Digital Rights 2012)

The backlash in Europe was successful. The European Parliament heeded the widespread popular backlash against the ACTA and on July 4, 2012, 478 members of the European Parliament voted against the treaty, thirty-nine in favour with 146 abstentions. The vote means that the twenty-two European member states that have signed the treaty cannot ratify ACTA as their local sovereign law.

ACTA: redux?

This seemingly was the end of ACTA and hence the rejoicing in many quarters. Yet, if ACTA is seen within the long term context of the US and EU desire to maximise IP protection and actions in support of this desire, there is every reason that they will not be dissuaded by the defeat of the ACTA in Europe. First, I argue that in terms of discourse neoliberalism remains the ruling ideology of political elites in Europe and the US, particularly in terms of trade. Second, recent bilateral negotiations by the EU and the US indicate they are trying to incorporate offending provisions of the ACTA, or even ACTA Plus provisions, almost entirely wholesale into proposed new treaties. In sum, the defeat of the ACTA by the European Parliament did not disrupt the intentions of the EU or the US to ratchet up IP protection on digital copyright. Whether these efforts will be successful is another question.

In terms of the hegemony of neoliberal discourse in Europe, it has been repeatedly argued that Europe is different from the US in having historically a distinct social model with a strong welfare state balancing the power of capital. Others disagree. Herman, for example, argues that the European integration process has been used "to adopt mainstream neoliberal policies and thereby circumvent and erode those state traditions and national compromises that, in the past, gave Europe its distinctiveness compared to other countries, notably the US" (2007, 61). Historically, however, exogenous shocks have sometimes been strong enough to disrupt a ruling discourse and favour the introduction of another. The Great Depression is an example of such a shock preparing the dislodging of classical economics advocating minimal state intervention in the economy and its replacement by Keynesian liberalism in the post-war period (Morin and Carta 2013). One might expect that the Great Recession of 2008 might represent another example of an economic shock preparing the way for the demise of neoliberalism. Such is not the case. Instead, neoliberalism remains as resilient as ever in the EU as in the US, if not more so. According to Marazzi, "neoliberalism is still the only language used by European politicians to confront the crisis" (2010). Others agree. According to the Corporate European Observer, Europe is heading towards an "authoritarian neoliberal regime" with "greater institutionalization of neoliberal policies in important areas such as member state budgets, social expenditure, and labour laws" (2012). A more recent academic analysis by Morin and Carta argues that "the current economic crisis, whether labeled the 'Global Crisis', the 'Great Recession', the 'Sovereign-Debt Crisis', or the 'Eurozone Crisis, has not lead to any discursive crisis" (2013, 14). Moreover, they insist that "while the Great Depression of the 1930s and the Stagflation of the 1970s were followed by discursive and policy changes, in favor of Keynesian liberalism for the former and neo-liberalism for the latter," there has not been "any abrupt change resulting from the crisis" (2013, 14). In other words, if the Great Recession could not undermine the hegemony of neoliberal discourse in Europe one could not expect the protest against and the fall of the ACTA do so either.

Thus neoliberalism remains remarkably stable as a discourse and dominant among political elites in Europe. This is particularly true in terms of the European Commission's continuing emphasis on neoliberal discourse in terms of trade. One conclusion that De Ville and Orbie reached in their detailed analysis of the European Union's trade policy discourse was that the 2008 crisis:

Has not led to the demise but to the reinforcement of neoliberalism, not least within the European Union (EU). We argue that this can also be observed in the EU’s external trade policy, where the European Commission’s discourse has continued to legitimize neoliberal trade through subtle re-articulations of the relationship between free trade and the crisis. (2013, 1)

Indeed, trade and competitiveness are not seen as problems but as answers to the EU’s economic woes. Here bilateral agreements are seen as "building blocks" to a more prosperous Europe and multilateral agreements. These agreements, however, will continue to emphasise greater protection for intellectual property including copyright (see for example, European Commission, Commission Staff Working Document External sources of growth at http://trade.ec.europa.eu/doclib/docs/2012/july/tradoc_149807.pdf ). For example, the 2011 EU-South Korea FTA provides for strict technological protection measures. According to Intellectual Property Watch the "EU-Korea FTA reaches the level of IP protection standards that ACTA was intended to reach: the scope of the IP chapter is far broader including...copyright" (Ermert 2011). These include criminal liability sanctions for copyright infringement. Moreover, the EU-Korea FTA would go beyond the ACTA and include an ISP provision which "would permit the use of website blocking and three-strikes systems for terminating the Internet access of accused content infringers, and possibly the removal of content without a court order" (Hart 2012).

In the US there is little doubt that Obama’s trade policies fit squarely within the neoliberal mold. According to Gathii, "[t]he Obama administration's trade policy in many respects continues the trade policy of previous Administrations. ...the Obama administration is carrying forward the recent US policy of market opening and job creation through regional and bilateral free trade agreements" (Gathii 2011, 429). In broad terms the Obama administration emulates the neoliberal practice of using bilateralism and regionalism to consolidate trade agendas. Indeed, the Daily Kos, a liberal daily news blog, praised the few senators in Congress who in June 2013 had opposed "Obama’s neoliberal trade nominee," Michael Froman, as the next head of the USTR (Liberty equality fraternity and trees 2013).

The EU-Korea FTA aside, there is evidence that both the US and the EU are intent on pushing for more TRIPS Plus Plus agreements that ratchet up enforcement of digital IP. For example, the 2013 Trade Policy Agenda and 2012 Trade Policy Report by the Office of the United States Trade Representative states that the US and Japan are "working together to ensure that the Anti-Counterfeiting Trade Agreement (ACTA) can come into force as soon as possible", with ACTA considered a TRIPS Plus Plus Agreement (2013 145). This includes countries such as Canada. The report went on to encourage Canada to "meet its Anti-Counterfeit Trade Agreement (ACTA) obligations" (2013, 174). Almost as if on cue, the Canadian government introduced Bill C-56 on March 1, 2013, the Combating Counterfeit Products Act which would amend Canada's Copyright Act. Critics such as Geist argued that "the new bill is positioned to ratify ACTA" (2013a). The bill would provide for increased criminalisation of copyright infringement and permit Canadian customs officials to seize and destroy without any judicial oversight any goods they determined to be "counterfeit or pirated goods." The EFF warned that this same power in the US had been abused and used to seize domain names and take down websites without a court ruling (Sutton 2012). If the Canadian government decides to pass Bill C-56 (later introduced as Bill C-8) intact, its strong majority permits it to do so. It should also be noted that in 2011 Canada, under considerable pressure from the United States, passed Bill C-11, the Canadian Copyright Modernization Act ratifying the WIPO treaties, with its TRIPS Plus Plus provision of the prohibition of the circumvention of digital locks even for lawful purposes.

Indeed, Canada is frequently pointed to as willing to accede to ACTA-like provisions by indirect means. In March 2009 Canada began negotiations with the EU on the Comprehensive Economic and Trade Agreement (CETA). These negotiations raised alarm among activists in Canada and Europe when leaked documents in February 2012 revealed that the most offending provisions of ACTA had simply been cut and pasted into CETA (this is clearly evident in a side by side comparisons of the two agreements by Geist (found here: http://www.michaelgeist.ca/content/view/6580/135/). After ACTA had been defeated in Europe the EU Commission claimed that the offending provisions had been dropped and stated that the "final result of the IPR chapter of CETA is likely to be very close to the IPR chapter of the Korea FTA" (qtd. in Geist 2012c). This caused even more alarm as the EU-Korea FTA, as noted, goes beyond the ACTA in a number of respects and would require a re-writing of Canadian law. However, all this is complicated by the fact that a technical summary of the CETA indicates that it contains no ACTA-like provisions. Yet, what has been approved with CETA by 2014 was merely an agreement in principle. In October 2013, the Canadian government announced CETA as "a deal in principle" but as of now there is still no legal text of it and no date set for ratification (see Chase 2014). One will only know what is included in CETA once negotiations have concluded. Moreover, the implications of Bill C-8 intended to ratify ACTA are still not known at the time of writing.

Fear thus remains ACTA may be sneaked in through the back door. This fear is evident in reaction to two of the most significant trade treaties now being negotiated: 1) the bilateral Trans-Atlantic Free Trade Agreement (TAFTA), as it is most commonly referred to, or the Transatlantic Trade and Investment Agreement (TTIP) as it is referred to by government officials in the US and the EU; and 2) the plurilateral Trans-Pacific Trade Agreement (TPP).

The TAFTA negotiations are not yet complete but have the trademark elements of previous negotiations in that they are negotiated in secret with knowledge of their contents coming through leaks. What is different is that, unlike previous bilateral agreements, they are being negotiated by the largest economies in the world, the EU and the US, in what is hoped to be a "game-changer,""shaping globalization," setting its rules for the twenty first century (Kilic 2013). According to one analysis TAFTA would, in terms of trade and investment agreements, represent neoliberal trade policy writ large. Kati Suominen argues that:

TAFTA promises to recreate the global trading system. Much like the United States, the EU has [FTA] deals...Once wedded to each other, the United States and EU could next weave all these common deals into one mammoth FTA. Rather than pie-in-the-sky, big-bang deals at the WTO, world trading powers will have arrived at a multilateral deal from bottom-up, through knitting together the various FTAs. (013)

For trade negotiators TAFTA is an alluring prospect, for its opponents it is frightening. Despite calls from civil society that IP not be included in TAFTA, the European Parliament accepted the neoliberal discourse of the European Commission, stressing in its negotiating mandate that "intellectual property is one of the driving forces of innovation and creation and a pillar of the knowledge-based economy and that the agreement should include strong protection of precisely and clearly defined areas of intellectual property rights (IPR)" (2013). A leaked document confirmed to its opponents that TAFTA would contain ACTA-like provisions (TAFTA 2013). Among these was the issue of "the liability of intermediary service providers with respect to the transmission, or storage of Information" (TAFTA 2013, 2). Under European law ISPs are not obligated to police and censor their networks. A leading opponent of ACTA and TAFTA, the citizen advocacy network, La Quadrature, expressed concern that TAFTA represented another attempt at imposing neoliberal discipline on citizens, claiming that the EU Commission and Parliament have decided

To stick to 'business as usual' by calling once again for a 'strong protection' of copyright and patent whereas the US and the EU already suffer from the most maximalist regimes in this field. After the ACTA fight, the negotiators of this new trade agreement – and in particular EU Trade commissioner Karel de Gucht – may once again attempt to use undemocratic negotiations to impose online repression in the name of copyright enforcement. Citizens must remain vigilant to influence the negotiations at the national level, and be watchful of EU institutions so as to avoid the worst. (Zimmermann 2013)

As negotiations on TAFTA are ongoing it is still far from clear whether it will contain ACTA-like provisions or worse.

The final example of the possibility of ACTA-like provisions being inserted into trade and investments comes in the form of the TPP which began negotiations in 2010. The TPP is composed of countries the US can more easily dominate, five of whom already have FTAs with the US—Brunei, Chile, Singapore, Malaysia, New Zealand, Peru, Australia, and Vietnam, with Canada and Mexico joining in June 2012 and Japan in April 2013. The TPP is a very complex agreement with provisions on banking, investment, food and digital copyright. The negotiations of the TPP parallel the ACTA in terms of strict emphasis on secrecy. Participants, both negotiating countries and select corporations, must sign a confidentiality agreement as a condition of entry into the talks. Little is known about the TPP except for the occasional leak. A leaked draft of the proposed TPP in November 2013 indicated that it included many ACTA provisions. According to Margot Kaminski, "The U.S. proposals look very similar to our past Free Trade Agreements, including the earlier texts of ACTA.  Whatever message was sent when the EU refused to ratify ACTA, the U.S. Trade Representative did not receive it" (November 2013). Whether or not these provisions will be in any final agreement is not yet known. What is known, as Kaminski notes, is that there are major divisions among the negotiating countries on a range of issues.

According to one analysis the secretly negotiated agreements such as ACTA, CETA, TAFTA, TPP "are starting to seem a lot like Whac-A-Mole: you knock one down and the same provisions appear in a different agreement" (Hart 2012). The proliferation of agreements represents a challenge to their opponents, many of them poorly financed civil society organisations, to follow, understand and mobilise against these agreements. As indicated previously, opposition to enhanced IP protection has grown from governments, to increasingly large numbers of NGOs, to social movements and huge mobilisations of the public all committed to internet freedom and privacy.


The question then is, were the successful anti-ACTA mobilisations a harbinger of things to come or an aberration, a disruptive moment when the anti-democratic thrust of neoliberal trade and investments was set back? This is a difficult question to answer. There is no doubt that resistance has grown from a few NGOs and states opposing TRIPS to the ability of developing states to create deadlock at the WTO. The WIPO, in turn, faced successful challenges from the A2K movement and took on a new mandate focussing on the concerns of developing countries. Bilateralism however, is a much more difficult challenge for civil society organisations and social movements, in effect creating a war on many fronts, whereby dominant states enjoy considerable material advantage over weaker states and thus the ability to impose their norms of digital copyright and protection. Australia is but one example of a state that accepted US DMCA standards in a tradeoff for greater access to the large US market.

The EU and the US enjoy other advantages besides their market power. They have also enjoyed, until very recently, an advantage in discursive power. Their ability to frame the critical issue of the need to maximise protection for IP in copyright in terms of "piracy" and theft still has considerable resilience among political leaders and politicians. Neoliberalism as a ruling ideology still enjoys cultural hegemony among ruling elites while this is less so among the population at large. Ideas are hard to kill and often live on long after their originators. Even great crises may not spell the end of a ruling ideology. John Quiggin, author of Zombie Economics, argues that

Habits of mind and thought are hard to change, especially when there is no ready-made alternative. The ideas that brought the global financial system to the brink of meltdown, and have already caused thousands of firms to fail and cost millions of workers their jobs, still underlie the thinking of those who are trying to respond to the crisis and, to a large extent, of the commentators and analysts who assess those responses. These ideas are neither alive nor dead; rather, they are undead, or zombie ideas. (2010)

The ideas that almost brought the global financial system down are the same ideas that govern the creation and negotiation of treaties placing increasing restrictions on online digital freedom and privacy. This acts as a brake in any deviation from existing trade policies with their relentless focus on ratcheting up protection for IP. The sheer size and diversity of the actors involved in resistance to these policies makes it difficult to coalesce and form a coherent ideological alternative. Although the successful emphasis on Internet freedom and privacy among those opposing ACTA in Europe means that the older tradition of liberalism from which these ideas are drawn still has considerable appeal as well.

Another advantage that states and corporations have over their civil society opponents is their institutional power, specifically their bureaucratic form. Much has been written about the transition from vertical organisations to horizontal organisations (Castells 2010b). Even states in an age of global governance are networked. Yet, bureaucracies have hardly disappeared even as they function in a networked world. The ability of bureaucracies with their historical memory to structure policy processes and perpetuate reigning ideas and values in their policies also provides them with an advantage over their more transient opponents in civil society who emphasise horizontality over verticality.

Yet, there are limits to the advantages of even states and corporations. Their ability to ratchet up norms for the protection of IP at the multilateral level has been successfully challenged. At first US hegemony seemed insurmountable with the US framing the debate and determining policy formation through such means of global governance as the WTO and TRIPS. Today, there are clear cracks in US hegemony. According to Michael F. Oppenheimer:

The liberal form of globalization that has shaped the world over the past 60 years is in steep decline. The reason for that decline—principally, the loss of American hegemony—is now coming into focus, but what will replace the liberal form of globalization remains unclear. ...The new globalization will be—inevitably—more heterogeneous. (2008, 1)

ACTA represents an attempt by the US, the EU and Japan to impose global IP standards. Yet, ACTA as a plurilateral agreement was not the success its supporters hoped it would be. What comes next may well be, as Oppenheimer suggests, much more heterogeneous. The US,the EU, and Japan will doubtlessly try to impose their norms on other countries and could enjoy success through TAFTA. Should that not be the case, one likely result may be a spaghetti bowl of norms on IPR imposed by powerful countries on weaker countries through bilateral agreements. In a digital age some may have more digital freedom and privacy than others.


[1] More specifically hackers are participants in the networks of computer programmers collaborating autonomously online on projects of creative programming (Castells 2001), while crackers are those who penetrate someone’s computer system to cause havoc.

[2] The list of US companies is dominated by pharmaceutical, computer, and media giants, including Bristol Meyers, CBS, Du Pont, General Electric, General Motors, IBM, Johnson and Johnson, Merck, Monsanto, Hewlett-Packard, and Pfizer.

[3] In distinguishing between the A2K movement and open access one may view the focus of A2K as being on increasing human capacities to access, use and create knowledge while open access (and open source) may be seen as strategies of the A2K movement.

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