The Art of the End Around
The Art of the End Around
The Art of the End Around

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    Representatives from the US, EC, Japan, Switzerland, Australia, New Zealand, S. Korea, Canada, and Mexico have been holding close-to clandestine meetings over the past year to construct a trade agreement that tightens the level of regulations on IP-related goods and services. This proposed pact is called ACTA, the Anti-Counterfeiting Trade Agreement. No official agendas or results of the talks have been released, though a “discussion paper” was leaked to Wikileaks in late May. This discussion paper is the basic extent of the world’s knowledge on ACTA, yet some version of ACTA will apparently be up for adoption at the G8 Summit in July. If ACTA is adopted at the G8 Summit, it will subject all of its signatory nations to its terms without practically no informed, public debate or deliberation.

    While we have no way of knowing the current specifics of ACTA's provisions, it is curious that ACTA exists at all. If we already have international fora for IP issues and treaties, such as WIPO and the WTO, and we already have no shortage of IP treaties, why is ACTA being conjured up? Is ACTA doing anything that existing agreements, such as TRIPS, do not? And why create a new forum, rather than using WIPO or the WTO, to do whatever is being done?

    One plausible answer is that ACTA is an exhibit of the Art of the End-Around: a “back door” way of achieving rules and regulations that the drafters could not otherwise achieve. As others have pointed out, ACTA’s birth is an example of the classic end-around known as “forum shifting.” As Australian professor Peter Drahos writes, “forum shifting means that some negotiations are never really over.” If the first house isn’t buying it, move on to the next house. Similarly, it seems that the ACTA nations got together after meeting with resistance to their desire to crank up the level of international IP protection and enforcement in WIPO and the WTO. So they simply shifted their case to a new forum 100% guaranteed to be unanimously sympathetic to their case—a forum composed exclusively of themselves.

    Tom Friedman wrote an interesting op-ed piece in the June 1 NY Times regarding the question of whether we should negotiate with Iran. He condensed the answer to a poignant maxim: “When you have leverage, talk. When you don’t have leverage, get some. Then talk.” It is likely that the ACTA drafters are familiar with this maxim and are employing it to push their particular agenda world-wide. The way a treaty generally works is like this: delegates from several countries get together and sign-off on certain provisions. Then, the delegates go back home and makes sure their country's national laws are in compliance with those rules and regulations. If so, then great. If not, then new laws must be passed to place the country in compliance. All is kosher, except what if the public has no idea the treaty has been signed or what it contains? What if there hasn’t been any significant public debate and deliberation? In short, what if transparency is next to nil? That’s what is going on here. No one really knows what ACTA is about, apart from the leaked “discussion paper.” Since it was leaked, rather than officially released, it’s not even clear who was intended to discuss it. Apparently, something that embodies ACTA may very well be presented and voted upon at the G8 Summit next month and still no one in the public has any real idea of what is going on or what is even on the table.

    Imagine this situation: a treaty is signed. One country's delegates go back home, tell the legislature that the country's laws aren't in compliance, and must therefore pass legislation or risk the wrath of the other signatories and face sanctions, international censure, and who knows what else. Imagine that trade representative talking to its Congress, saying, “I know we didn’t tell you about this treaty and that we don’t have this law to put us in compliance and I know we haven’t had any discussion about it, but we REALLY gotta pass it—by next week—or else we’ll be out of compliance, see, and all sorts of bad things will happen…” That’s called getting leverage. It’s basically an end-around (or at least a curtailment of) the democratic processes of informed debate and deliberation.

    It’s also called “policy laundering” and it’s exactly what happened leading up to the passing of the DMCA. Early versions of the DMCA met with stiff opposition in the US. So DMCA supporters essentially took it to WIPO to craft an international treaty that would give them the leverage needed to pass the bill over the opposition at home. (check out “The Bargaining Table” chapter in Jessica Litman’s Digital Copyright). When it came time to implement the treaty's provisions in the DMCA, though, this newfound leverage was used to push beyond the requirements of the treaty, leaving the US with more restrictions than the rest of the world had to have.

    With that in mind, reflect on how intense the fallout has been in the decade since the DMCA’s passing. If passage of the DMCA was tough then, it would probably be even tougher, if not impossible, to pass even more stringent restrictions and draconian enforcement mechamisms for copyright today. A seemingly intractable problem, but not if you can build a nifty end around and apply it with leverage (and stealth). The ACTA “discussion paper” lists a host of potential provisions extending beyond the requirements of existing agreements. When coupled with ACTA’s stated goals of “International Cooperation” and “coordination with rights holders and trading partners,” it is not fantastical, as Anderson describes, to envision ACTA as a treaty normalizing the controversial practices of the DMCA on an international basis.

    The first suggestion under the ACTA discussion paper’s “Internet distribution and information technology” section is for a “Legal regime, including safeguards for Internet service providers (ISPs) from liability, to encourage ISPs to cooperate with rights holders in the removal of infringing material.” While “removal” and “safeguards” sounds like they’re from the DMCA’s notice-and-takedown provision, “encouraging ISPs to cooperate with rights holders” sounds a lot like content filtering and raises net neutrality concerns. This provision sounds like something that, say, Comcast might push to support their filtering or throttling practices and undercut net neutrality.

    I don't think that ACTA was conceived specifically to subvert net neutrality and to legitimate copyright filtering. But this proposed provision within ACTA could do just that. After all, the net neutrality battle is a tough one, whose lines have significant overlap with the battle for increasingly strong IP protections. But if there was an International Treaty…that tough battle might just get a lot easier. After all, we would have signed this thing with the EC, Canada, Australia, etc. We couldn’t want to be out of compliance like some disreputable, irredeemable and lawless state. After all, Senator, who are we trying to be, Somalia? This is, again, called “getting leverage” and, again, it is an end-around the democratic process of informed debate and deliberation.