ACTA, innovation and human rights

The Estonian Prime Minister Andrus Ansip today in the Estonian Parliament ridiculed people who are against the controversial Anti-Counterfeiting Trade Agreement (ACTA). He accused them of paranoia and suggested they wear tinfoil hats and that they have eaten some bad seeds. This seems rather unusual for a top European politician, while Polish and Czech governments are reconsidering their support of ACTA.

For me this is not about paranoia or mob-mentality trying to ruin a perfectly reasonable international agreement. There is a legitimate concern that ACTA, while strengthening the global protections against counterfeiting, will also result in less protections for some of the most fundamental human rights. There have been also people like Linnar Viik saying that rather than helping young new startups, it might stifle them in a difficult-to-navigate labyrinth of intellectual property rights. Instead of fostering innovation and creativity, ACTA might instead will be used to try to fight innovation and preserve business models, which are long overdue to be dismantled. Of course, it is difficult to say what will be the actual impact of ACTA, because much of it depends on the interpretation and implementation of the agreement.

Intellectual property rights are a legal construct, created by people for people for specific goals (to provide creators and inventors incentives to create and invent). Thye give certain exclusive rights (monopolies) to use and licence etc. However, any intellectual property reform will be fought by the monopolies that have been created as they will lose their business even if different system might make more sense for the society as a whole. I refuse to believe that if we were to start afresh with the IPR framework, we would end up with anything remotely similar to the terrible mess we are in today. As a lawyer I feel sorry for my profession as instead of trying to enable and support actual innovation and creation (which in today’s world is usually built upon exisiting technologies or art) we as lawyers mostly work to try to prevent and stop the spread of technology. Fortunately there are some like Karmen Turk or other people at Estonian law firms who see that the IPR system needs reform. (A sidenote: Tallinn Law School will begin from Autumn 2012 with a new Master programme in Law and Technology where these issues can be studied and researched in depth.)

Human rights are in a way very similar to intellectual property rights. Both got started internationally after WWII and reached real global acceptance in the 90s after the collapse of the Soviet Union. After that time both human rights and intellectual property rights have spread internationally all over the globe. However, IPR are usually supported and promoted by multinational corporations whereas human rights do not have such wealthy and organised proponents. At the same time, human rights are at least in most countries considered far more fundamental than IPR.

Intellectual property rights can be also considered human rights, as right to property is also recognised as a human right. However, the case-law of European Court of Human Rights so far has emphasised other rights such as freedom of expression or freedom of speech as more fundamental to the functioning of a democratic society than property rights. With ACTA this balance is under threat.

If there is a choice to have ACTA or not have it then it is for sure better to not have it. What we would rather need more is a global freedom of movement of information agreement, protecting internet from unreasonable interference from states. The European Commission a few years ago proposed to add free movement of knowledge to the EU’s current four fundamental economic freedoms (goods, persons, services, capital). I think that would do much more for both European competitiveness as well as helping creativity and innovation. Sadly, not much has been heard about this idea after 2008.