If anything else, you must admit that the Yanquis are persistent. With the coming of the so-called information age, a concern which has been near and dear to many US firms has been intellectual property rights enforcement (henceforth IP enforcement). The essence of the American concern is simple: with a modicum of effort online, it is not particularly difficult to "pirate" books, films, music, shows, and video games. For instance, the Recording Industry Association of America (RIAA) cites an Innovation Policy Institute study that claims losses to the recording industry amount to some $12.5 billion worldwide from physical and online music piracy.Aside from not being particularly keen on the apparently endless proliferation of song-and-dance bimbettes, gangsta rappers, and other exemplars of high American culture, a more serious concern of mine is the method behind these studies. For instance, the Innovation and Policy Institute makes some fairly heroic (and obviously self-supporting) assumptions. First, they claim that 20% of those currently pirating music would pay for it without the benefit of substantially justifying where this figure comes from. Second, they blithely assume that these would-be converts to legal downloads would be willing to pay an assumed "Legitimate World and U.S on-line price of $0.99 per downloaded song" (see table 2). Again, there's the implicitly Amerocentric assumption that international music listeners would be willing to pay that price when (a) most physical music products are marketed at lower prices worldwide and (b) the price quoted is more reminiscent of that being charged by US online music stores like Apple iTunes.
Now, the Anti-Counterfeiting Trade Agreement (ACTA) is the latest in a long line of US-led efforts to preserve software rents largely at the behest of media titans represented by RIAA and the like. ACTA is not a trade agreement in the conventional understanding as it deals solely with IP issues. While essentially all of the counterparties involved in negotiating ACTA are developed country peers of the US, the key thing to remember is that, when enforced, ACTA would operate outside of existing global bodies dealing with intellectual property rights. Why is this important? Being the acknowledged architect of many international institutions, a recurrent criticism has been that of America continually devising more regimes if existing regimes are not deemed welcoming enough to US interests. For instance, while there already was a World Intellectual Property Organization (WIPO) prior to the creation of the WTO, the US lobbied hard for the inclusion of Trade-Related Intellectual Property Rights (TRIPS) since America didn't deem the WIPO stringent enough on enforcing US claims worldwide. Even arch-globalizers like Jagdish Bhagwati and Martin Wolf have criticized this excessive stringency on IP (more on this in a minute), and highly controversial applications are too numerous to list here alike the case of access to drugs for HIV-AIDS sufferers in the Global South.
In IPE, there is a phenomenon called "forum shopping" in which countries attempt to gain traction on pet issues by scouring international organizations for the most favourable legal opinion. Given its diminishing though still substantial power in agenda setting, the US has not only forum shopping but also forum creating abilities. That is, it shows little compunction in, well, dumping international organizations it itself often created if they prove to be insufficient in enforcing American interests. Perceptions of still-rampant piracy by RIAA and the like are now spurring the US government to (again) seek something via ACTA which is even more stringent than WTO-TRIPS (which, in turn, effectively superseded WIPO).
Development observers should particularly note that many developing countries are already wary of ACTA's implications. The US hopes that signing on developed countries would ratchet pressure on developing countries to do the same. That is, as developed countries adopt stricter regimes, they will feel unduly compromised by those who don't and demand that they do so. The South Centre has an informative primer on how developing countries, especially the likes of Brazil and India which have always been active players on global governance issues, are looking warily at this latest IP gimmick in a long line of IP gimmicks:
Though at present ACTA is being negotiated only between 11 parties, it is of concern for the developing countries because they could be required to enforce ACTA provisions through cross-referencing in bilateral free trade agreements with developed countries and in WTO accession agreements. The countries that are negotiating ACTA accounts for about 70 per cent of world trade. Hence, application of TRIPS plus enforcement standards in these countries [like ACTA] could lead to targeting products from developing countries as counterfeit goods, since the ACTA envisages any form of IPR infringement as counterfeiting.Supporting trade is already such a difficult cause. Many third world folks like me are not insuperably opposed to trade, but the US sure makes it difficult to argue for trade when the deck is often stacked so unfavourably against poor countries. In the words of one of America's most cherished entertainers, "Oops I Did It Again"--and you can bet the US is not that innocent in the trade realm.
This is illustrated by requests for detaining shipments of soymeal from Argentina in European ports on the request of Monsanto Corporation on the ground that the soymeal contained a gene over which Monsanto has a patent in Europe, though it did not have a patent in Argentina where the soymeal was produced [see here].
Further, the broad scope of border measures under ACTA that also require customs seizures of goods in transit can have a severe impact on the trade of developing countries. This can also impede the ability of developing countries to use the public health related flexibilities under the TRIPS Agreement that would enable them to import affordable generic medicines for ensuring access to medicines for their population. This has been shown in the seizure of genetic drugs produced legitimately in India when they were in transit in European airports (especially in the Netherlands) when these medicines were in transit on the way to Brazil, Africa, etc.
ACTA is at the centre of the TRIPS plus IP enforcement agenda that is being pushed by developed countries through various multilateral and bilateral forums such as the World Customs Organization (WCO), the Universal Postal Union (UPU), INTERPOL, WHO-IMPACT, and bilateral FTAs and EPAs. The provisions in ACTA would tend to set the template for TRIPS plus IP enforcement provisions that are being pushed through these various channels.
Therefore, developing countries should question the legitimacy of the ACTA negotiations and also highlight in multilateral forums how such negotiations are undermining the existing balance between IP and public policy issues in respect of food security, access to medicines and access to knowledge.
Developing countries should also closely examine the nature of institutional relationship between ACTA and multilateral organizations like WIPO and WTO, with the objective of ensuring that such institutional relations do not promote an unbalanced IP enforcement agenda through technical and legislative assistance provided by these organizations. Moreover, there is a need for awareness of this issue to be developed in the capitals and greater dialogue among developing countries on this issue beyond the ambit of the Geneva based missions. This would be particularly useful in helping developing countries being better informed about the grand strategy behind IP enforcement in bilateral negotiations with developed countries.
