If, as Mark Getty famously claimed, ‘Intellectual Property is the oil of the 21st century’, then the Anti-Counterfeiting Trade Agreement (ACTA) has something of the character of a covert black-op in that war. A covert black-op which will benefit corporate power. The whole thing has been negotiated in secret between rich countries in a policy-laundering scheme designed to avoid the meddlesome interference of democratic debate, transparency or dissent.
Like the recently defeated SOPA/PIPA legislation in the US, ACTA will introduce de facto censorship of the internet, but ACTA goes one step further and introduces dangerous provisions that can be used by multinationals to restrict access to generic medicines to people in the Global South.
Lobbyists for big pharma have added their own clauses into the agreement that require customs officials to treat generic medicines as if they were counterfeit goods and seize them.
‘Negotiating countries are cynically using legitimate fears of counterfeit medicines to exert greater control over the trade in generic medicines to poor countries,’ says Oxfam spokesperson Rohit Malpani. ‘ACTA is proposing a new, expanded framework of intellectual property protections on behalf of multinational drug companies which will be combined with border measures to stifle the trade in legitimate generic medicines. This will mean that poor people will be denied legitimate and life-saving generic medicines.’
The obfuscatory tactic of intentionally confusing one thing with another is nothing new on behalf of the multinationals. In fact the whole notion of intellectual property is deeply problematic, confusing as it does the three very different phenomena of copyright, patents and trademarks. Throwing counterfeiting into the mix bamboozles even more. Now, it suddenly becomes possible to talk about countries trying to save lives as if they were some geezer selling knock-off Rolexes down the market. Or to speak of people who share ideas, computer code or music as ‘pirates’.
The WHO estimates that 1.3 to 2.1 billion of the poorest people in the world do not have access to essential medicines. There is something deeply wrong in a society that values the profits of a global corporation more highly than securing that access. At least 20 legitimate shipments of life-saving generic medicines have already been seized under a similar EU regulation. ACTA will formalize and extend that power. It’s not clear that it will do anything to prevent the circulation of fake medicines.
‘We are in danger of ending up with the worst of both worlds,’ says Michelle Childs of Médecins Sans Frontières. ‘Pushing IP rules, which are very effective at stopping access to life-saving drugs but are very bad at stopping or preventing fake drugs.’
ACTA's censorship provisions are also extremely troubling. Like SOPA/PIPA they introduce virtual fiefdoms for copyright holders, encouraging a chilling effect on freedom of expression online.
‘The ACTA enforcement regime imposes a nineteenth century view of intellectual property (IP) that fails to acknowledge the changed relationship between individuals and information in the modern electronic age,’ say Article 19. ‘Consequently, the IP interests of corporations are disproportionately protected at the expense of individuals’ rights to freedom of expression and information.’
Perhaps the most controversial aspects of ACTA are its intentional avoidence of the usual norms of democratic accountability and introducing a parallel legislative process. As Adam Ma'anit noted in issue 435 of New Internationalist magazine: ‘ACTA is being negotiated in secret between supposedly democratic entities … while some cursory information has been released, there is still concern over the substance of the negotiations and the lack of public debate and scrutiny over some of its more odious details.’ The process has consistently excluded civil society groups, and even parliamentary discussion.
The EU Parliament development committee is scheduled to hold its first debate about the shadowy legislation today (24 January 2012). Their report, written by Jan Zahradil, a conservative, euro-sceptic from the Czech Republic, is a masterpiece of one-sidedness, failing to mention the extensive criticism that has been made of the legislation, or the frankly scandalous way in which legislators have circumvented the usual checks and balances of the democratic process. There is a much fuller analysis of the agreement over on La Quadrature Du Net's wiki. We all need to stop ACTA before it’s too late.