The Anti-Counterfeiting Trade Agreement (ACTA) has gathered much press over recent days. The arguments raised are worrying, but also rather confused. From the point of view of intellectual property and openness (which concerns us in many ways in CETIS, JISC, and UK HE) it is worth aiming some very sharp questions at the weak intellectual foundations of ACTA.

It is worth reading the text of the agreement (just search for a chunk of what I reproduce here). We need go no further than the very first two paragraphs:

The Parties to this Agreement,

Noting that effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally;

Noting further that the proliferation of counterfeit and pirated goods, as well as the proliferation of services that distribute infringing material, undermines legitimate trade and the sustainable development of the world economy, causes significant financial losses for right holders and for legitimate businesses, and, in some cases, provides a source of revenue for organized crime and otherwise poses risks to the public; […]

It’s perhaps not surprising that, if one really believes this, measures can be implemented that lead to bad consequences. We see it so often: people get scared by something, and overreact. I believe, as thinking people, we should be robustly questioning what come across as misleading half-truths contained in this preamble. Before signing up to such a treaty, it should be incumbent on signatories to ensure that the people they represent actually believe in the justifications stated in such a preamble, otherwise there is bound to be trouble.

First, where is the actual evidence that “effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally”? At very least, such a treaty should refer to the literature. I don’t know it, but who does?

So, knowing essentially nothing about the literature, I plunge in via a Google search for “intellectual property” and “economic growth”. One really can’t expect the WIPO literature to be unbiased. And many other academic articles are, of course, hidden behind paywalls, benefiting, … er … the copyright holders … who are only rarely the authors, and much more often the vast wealthy empires of publishing. But then I found one paper on an open website. It is: “International trade, economic growth and intellectual property rights: A panel data study of developed and developing countries” by Patricia Higino Schneider, published in the Journal of Development Economics 78 (2005) 529 – 547. Part of the conclusion is very interesting.

The results regarding intellectual property protection are interesting. They suggest that IPRs have a stronger impact on domestic innovation for developed countries and might even negatively impact innovation in developing countries. These results may be indicative of the fact that most innovation in developing countries may actually be imitation or adaptive in nature. Therefore, providing stronger IPRs protects foreign firms at the expense of local firms.

Even though this is followed by the relatively tame

The policy implication here is not to discourage intellectual property protection in developing countries, but to generate incentives for its strengthening. Innovative activities and IPRs are complementary in nature; therefore, developed countries would benefit by supporting R&D activities in developing countries.

At least, the end of the conclusion

highlights the importance of conducting studies that are inclusive of both developed and developing countries and suggests that pooling together developed and developing countries might lead to misleading conclusions, and consequently to inadequate policy recommendations

And this is from just one article I managed to find. Is that not enough to start casting doubt on the bland assurance of what ACTA “notes”?

That’s only the first paragraph of ACTA.

The second paragraph expresses concern about “significant financial losses for right holders” without questioning the ethics or desirability of this. So what if a right holder is making itself rich exploiting its IP ownership while withholding free useful information and cheap and effective solutions to people who need them? No talk of that, but rather of the cases of “organized crime”. That might remind people of the “war on drugs”, but hasn’t even that fallen into disrepute recently?

And these two paragraphs form the sum total of the explicit justification for ACTA. It strikes me as scandalous that such far-reaching and worrying political conclusions can be based on such a contentious basis.

Yes, of course we don’t want criminals making dangerous counterfeit goods. Let’s encourage our governments to fight that kind of thing that we all agree on, without creating highly problematic treaties and laws based on highly dubious premises.