While the dust of the SOPA and PIPA battle in the US has not settled yet, we quickly approach the next showdown around an acronym in the realm of intellectual property regulation. This time the main battleground is Europe, the acronym is ACTA. The “Anti-Counterfeiting Trade Agreement” had been negotiated secretly for years until in early 2010 a draft of the agreement was leaked (see Michael Geist; for a critical and more up to date overview see the ACTA info portal of La Quadrature du Net (LQDN)). Since this leak, the draft had been substantially reworked and, last week, the treaty was signed by representatives of the European Commission and 22 member states in an official signing ceremony.
However, the political controversy is far from being over. For one, the treaty needs to be approved by the European Parliament, which is now the main target for mobilization of both supporters and opponents. For another, the signing of ACTA has sparked surprisingly strong protests in some EU member states, above all in Poland (see video below). The intensity of the Polish opposition has in turn raised attention in neighboring states, most importantly in Germany, as well.
One, admittedly not very representative, indicator of the growing awareness of ACTA in Germany is that I have received an increasing number of requests for expertise, talks or comments on the issue over the last weeks. What puzzled me in this regard was that I had difficulties giving concrete examples why ACTA was problematic. Of course, the whole direction of the treaty as well as the secretive and undemocratic negotiation process deserve enough criticism to justify opposition. But when asked for detailed examples how ACTA endangers free speech and innovation on the net it was not so easy to come up with a convincing answer. After the initial leaks, the draft had been changed repeatedly and many of the most worrying provisions had been softened, reformulated or altered.
Jan Engelmann, head of the politics and society division at the German Wikimedia chapter, seemed to have encountered similar difficulties and has also blogged about it (German only). His bottom line: ACTA represents the ‘principle of fuzziness’. And I completely agree. ACTA is an exemplary case for what Raustiala and Victor (2004, PDF) call “strategic inconsistency” and others have referred to as “strategic” (Alter and Meunier 2007, PDF) or “constructive ambiguity” (Watal 2000, PDF; Yu 2007, PDF).
In its digital chapter (“Enforcement of Intellectual Property Rights in the Digital Environment“), for example, ACTA is not very specific on how online copyright protection should be enforced. Article 27 (3) reads as follows:
Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.
How do you “promote cooperative efforts within the business community to effectively address […] infringement” while at the same time “preserving fundamental principles such as freedom of expression, fair process, and privacy”? In this clause, ACTA obviously calls for privatization of copyright enforcement measures following the US example of “Copyright Alerts” (see “‘Copyright Alerts’ against ‘Content Theft’: Three Strikes through the Backdoor of Private Regulation?“). How these “cooperative efforts” should be implemented stays diffuse and the commitment to “fair process and privacy” is obviously inconsistent with such private enforcement measures called for in the first sentence.
Consequently, critics such as LQDN argue in their analysis of the final version that “police (surveillance and collection of evidences) and justice missions (penalties) could be handed out to private actors, bypassing judicial authority and the right to a fair trial to block and take down allegedly infringing content.”
In the above cited studies on strategic or constructive ambiguity, the focus is on the people crafting international treaties. For them, introducing ambiguity into a text is a way out of gridlocked negotiations. Often, for some parties an ambiguous treaty is way better than no treaty. In the case of ACTA, this is the case for the entertainment industry, which has nothing to lose if ACTA fails but the resources to lobby for strong national and private implementation if ACTA passes.
But the ACTA case also elucidates another aspect of ambiguity in international treaties. While ambiguity might be constructive from a negotiator’s perspective, it might at the same time be obstructive for counter-mobilization. Since it is not obvious what will actually happen when the treaty is signed, warnings can easily be dismissed as excessive. At least, ambiguity forces opponents to actively create a narrative of how ambigous passages are likely to be implemented. Seen from this perspective, ambiguity provides both a threat and an opportunity for counter-mobilization: ambiguity requires more work to frame protests but it also allows such framing.
PS: If anyone doubts that the entertainment industry has indeed nothing to lose if ACTA fails, I recommend to have a look at the most recent numbers provided in the report “The Sky is Rising” – the industry is doing great without ACTA and in spite of the economic crisis and the Internet (via irights.info):