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Politics of the Copy

Monday, October 19th, 2015

Where do we get the idea of the original and copy? More than a decade ago when I started wrestling with the legal regulation of digital media aka the world as we now experience it I realised that in the digital world there is no original. Instead there are copies that co-constitute each other.

I type this blog post, as I do so my computer re-arranges some electrons in its Random Access Memory. This RAM is dependant on a power supply – if the power supply is disrupted before I save the post then the configuration of the electrons will not be accessible to me. (Note to self; save the post right now). Is that the original?

I, the supposed author of the post do not have direct access to that ephemeral record, instead it is accessible only through the mediation of a computer using a particular set of programs and protocols. I interact with via a scree, this draft is displayed on a screen as I type. Is that the original? It exists only because of the arrangement of electrons in the RAM which is the basis for the display on the screen. When I make changes I perceive them on my screen but those changes are made through altering the version in temporary memory. Perhaps they co-constitute each other. Together they make up the original blog post, except that they don’t, they are not yet a blog post because they exist only on my computer. They must be available on my blog site to other users of the World Wide Web. To accomplish that I must send a version to the server that hosts my blog.

Publishing the blog post requires my computer to send signals to the blog server so that it can make a ‘copy’ of whatever it is that is in my computer right now.The blog server then uses that version to send instructions to your computer to tell your computer what to display as you can read this. So perhaps although it is a copy from my computer what is on my blog server is the original.

By now, if you haven’t given up reading you wonder what the point is. Who cares which is the original? Perhaps there are no originals in the digital world, only co-constituting copies.Why it matters is because this language of original and copy is deeply embedded in all kinds of places, in law, in literary theory and in some epistemologies. It is not only copyright law that relies on ideas of originals and copies, so does the law of evidence which requires the production of an original document rather than a copy.

If the distinction of idea and copy is no longer stable you may ask what destabilization reveals; what purposes does the distinction serve? What does it valorize and what does it occlude? What politics of the copy become visible?

A rare opportunity to talk about the politics of the copy is a workshop at the University of the Western Cape on 28 November 2015.  It is organised by Paige Sweet and Kate Highman of UWC who have called for presentations. Adam Haupt (remember Stealing Empire?) will be giving the plenary.

ACTA Rejected: what does that mean for South Africa?

Monday, July 9th, 2012

On 4 July the European Parliament voted against Europe adopting ACTA, 478  MEPS voted against ACTA and only 39 voted for ACTA (there were 165 abstentions). Green and liberal MEP’s voted against ACTA as did many conservative MEP’s.

In a previous post I pointed to some of the problems with ACTA including the the collateral damage is threatened for the poorest people in the world. South Africans concerned interested in development identified two salient problems with ACTA, the potential increased seizure of medicines in transit through ACTA signatory countries and the way in which ACTA negotiating countries have abandoned multilateral institutions like the World Trade Organisation.

Now that ACTA has firmly rejected in Europe what does that mean for South Africa?

One consequence is  that ACTA will no longer be the primary vehicle through which the Enforcement Agenda is driven. Instead the Enforcement Agenda is  already being pursued in other fora such as the World Health Organization and regional trade agreement such a s the Trans Pacific Partnership (TPP) and the EU-Canada bi-lateral trade agreement. The likelihood of South Africa being forced to sign an ACTA text without an opportunity for negotiating the text is diminished. which it did not negotiate.

ACTA itself may not come in to force. ACTA was negotiated by trade officials of Australia, Canada, the European Union, Japan, Mexico,Morocco, New Zealand, South Korea, Switzerland and the United States. Six countries would have to ratify the agreement for it to come into force, although an agreement without participation of Europe is likely to prove unimportant. On 27 June the Joint Standing Committee on Treaties of the Australian House of the Australian Parliament refused to recommend ratification and instead suggested that an independent and transparent cost/benefit analysis of the agreement should precede any vote by Parliament.  In the 4th of July vote the European Union chose not to ratify ACTA.  On 9 May 2012 Switzerland announced that it would wait before deciding whether to ratify ACTA. The European rejection is likely to result in a Swiss rejection. The Mexican Senate passed a resolution against ACTA as far back as June 2011 suggesting that ratification will not take place easily there. There are still sufficient countries to potentially ratify the agreement; Japan, Canada, New Zealand, Morocco, Singapore, South Korea and the United States. There have been anti-ACTA protests in Japan. With the exception of Morocco those countries are either negotiation, observing or interested in the TPP.

Seizures of generic medicines in transit will likely continue. Before finalization of ACTA there have been incidents in which the German customs authorities seized generic medicines in transit through German, en route from India to other developing countries for alleged trademark infringement. It turned out that the medicines did not infringe a trademark, even in Germany where the medicines were not going to be distributed anyway, but that the Germany customs officials couldn’t tell the difference between the pharmacological name of the medicines and a trademark. ACTA would have multiplied these incidents. If South Africa wants to ensure access to medicines it will have to support India and Brazil as they challenge these threats to global free trade in pharmaceuticals. However political support for unilateral seizures by customs officials in OECD countries is likely to erode at least in Europe.

The defeat of ACTA in Europe, following on the defeat the proposed PIPA in the US Congress in January this year are both indications that intellectual property issues have become mainstream political issues in the US and Europe.Whether growing public dissatisfaction with the power of industry lobbyists at home will inhibit developed country trade representatives from pressurising developing countries to spend public resources on enforcement remains to be seen. The public discourse around intellectual property law is beginning to mature and increasingly sophisticated analysis appear in the mainstream press.

Unfortunately with rare  and merciful exceptions that is not the case in South Africa. Even the media reports of a resounding democratic rejection of ACTA is couched in the narrative advanced by the industry lobbyists responsible for ACTA. One example is the report in Business Live which characterises ACTA as a global agreement. It is not, the trade officials who came up with the agreement decided that it wasn’t going to be be open to China, India and Brazil, let alone African countries, to participate. Instead it was intended that ACTA would be imposed on developing countries when the text was set without giving them an opportunity to reply. The article characterizes the controversy around ACTA as “a two-year battle between legislators who supported the Anti-Counterfeiting Trade Agreement and (ACTA) and it’s largely young, digitally savvy opponents”.  The officials who negotiated ACTA were not legislators, they were unelected trade officials who chose to negotiate a secret treaty and then present it to the actual legislators as a take it or leave it package.

South African media analysis of intellectual property defaults far too easily to a sing;e narrative that digital technology should be viewed primarily as a problem since it disputants existing businesses models, which is expressed primarily through morally laden fuming against “pirates”. What is missing is a sense that intellectual property is a utilitarian instrument to encourage innovation and thus subject to assessment whether it is encouraging or inhibiting innovation.