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I have been hearing a lot lately about ACTA, a treaty which is being drafted at the behest of a handful of old economy monopolies.  IPJustice has a useful anaylsis. ACTA is an accroym for Anti-Counterfeiting Trade Agreement. Who could be against measures to prevent counterfieting? No doubt the name was chosen for exactly that reason, to imply that anyone who wishes to debate the provisions or even the necessity for the agreement. Its also sold as a trade agreement, which in some of the countries taking part in negociations means that executive sign-off is suffecient to bind that country, and the treaty need not pass scrutiny by the legislature.

Its concieved as a treaty amoungst a select club of countries. It ignores the World Trade Organisation which was created from the General Agreement on Trade (originated by the United States), in order to deal with trade issues. It ignores the World Intellectual Property Organisation, the organisation which exists for the global governance of intellectual property. Instead it seeks to bypass these representative fora, and create a non-negotiable text. When the terms are set, then developing countries will have to comply if they wish to trade with club members.

Opaque decision making, trade pressure, forum shopping, these are all distressing aspects of ACTA. I would like to examine something else though, what this indicates about the small but powerful club of old economy content companies who spawned ACTA.

It suggests that the failure of all the attempts over the last 12 years to use law to prop up failling business models has somehow not been understood, or accepted.

It suggests that the processes to reform intellectual propert, such as the WIPO Development Agenda, adopted by the WIPO in September 2007 have been dramatically misunderstood.

It confronts those of us who have argued that intellectual property law can be reformed with the realisation perhaps reform is simply not possible. Perhaps the mere possibility of monopoly rents creates a political economy in which issues such as balance, appropriate incentives, the public domain are reduced to meaningless concepts.
It seems that the free trade theorists are right, that any government sanctioned monopoly creates perverse incentives, creates opportunities for extra-ordinary profits if government processes can be influenced. Is the only way to escape these influences to abolish copyright, patent and trademark altogether? For some time now those who argued that intellectual property can be rebalanced have been able to point to the growing global realisation that for the global intellectual system to attain credibility it is necessary to re-introduce balance into the system. Despute TRIPS, TRIPS + FTA’s, attempts to foist software patents on Europe, and unecesary Broadcast treaties on everyone, it was possible to argue that IP can be reformed. Parrallel with these developments has been a growing global awareness that the ways in which innovation and creation take place in the digital world are radically different to the ways in which they take place in the analogue world. There has been an increasing understanding the business models must change accordingly.

Millions died due to HIV-AIDS, before compulsory licensing, or the threat of compulsory licences brought them medicines. It became increasingly obvious that
ACTA shows that despite all of these signs that change is necessary there remains a determination to extract ever increaisng monopoly rents at all costs, at the cost of the global trading system, at the cost of destroying all possibility of intellectual property reform, at the cost of development for billions of people, at the cost of civil liberties, at the cost of human lives.

The abolitionists can point to ACTA as evidence that the global intellectual property system is not, and is not intended to be,  a balanced system, a system in which limited exclusive rights are granted to creators and inventors (remember them?) as an incentive to create and innovate. Instead industry lobbies can commandeer trade policy.

The abolitionists can point to the corrosive nature of IP in which every attempt.

ACTA may well prove to be the decisive event at which abolitionists begin to be heard more than reformers. Rent seekers may secure ever more draconian measures over the short term. A new generation in both the developed and developing world will have none of it. If reform, genuine reform is not begun now, the is likely that intellectual property will not be reformed, it will be abolished.

ACTA may well prove to be the decisive step which leads to the abolition of IP.

I have recently returned from Uganda. From 27 to 29 May 2008 I participated in the PALM Africa Workshop on alternative publishing models in Africa, which was hosted by the National Book Trust of Uganda (NABOTU). The participants in the workshop represented a wide range of types of organisations, including public and private sector publishers, and an equally wide range of competences, and attitudes toward alternative publishing models. The organisers of the workshop are to be congratulated on patiently and persistently explaining the potential benefits of alternative licensing. Experimenting with alternative publishing models offers a low cost, low risk way of testing the opportunities available to developing country publishers.

I introduced copyright and alternative licensing, a novel subject for most participants. The remainder of the time I participated in the workshop, fielding any question on copyright and licensing. I’ve made a short list on what emerged from the workshop for me.

Learnings:
The participation of Gary Rosenberg, who heads the HSRC press, was incredibly useful. His practical experience of running a very successful open access publishing house enabled participants to consider how open access as an enterprise strategy, rather than a technocratic subject.

There are a number of opportunities emerging:

1. The opportunity provided by the need to measure dissemination of CC licensed material. People contemplating or already using Creative Commons licences on material need ways to measure how this disseminated. There are two aspects to this, simple ways of approximating how many times material is copied or downloaded, and the far more complex process of understanding the socio-economic impact of sharing material. Content disseminators who use Creative Commons licenses to share material often need to demonstrate to funders, advertisers and administrators how open licensing increases dissemination. There are existing ways of measuring how CC licensed material is spread. There is however a gap between the skills involved in using a fairly disparate set of tools. An easy to understand framework, which explains both the tools and their limitations, together with the tools, or links to the tools would constitute a useful toolbox. The process of evaluating the impact of sharing content is more challenging, involving qualitative questions of the value of knowledge. Open access proponents can’t allow the difficulty to intimidate us, its important to begin developing an understanding now. While there are obvious measurable efficiencies from adopting open licences, ranging through exponentially increasing distribution of copies, while decreasing costs, to increased citation and sales, the greatest benefits are less tangible, increasing the number and extent to which more people can contribute to knowledge production. If we don’t engage now with the challenge of value rather than number, there is a significant risk of perpetuating the broken Modern paradigm that only things which can be numbered are real.
2. The opportunity provided by the need for basic research on how users respond to free alternatives in developing countries. While there is research on way in which users will, despite the availability of a ‘free’ alternative, nevertheless elect to pay for a ‘value added’ version of a work, that research has been conducted primarily in the developed world.
3. In order to address the unfounded but pervasive claim that because of the paucity of discretionary income in developing countries, entire populations will prefer a free alternative to paying for a valued added alternative. For example, how will the small pool of users in a least developed African country respond to a free offering of the text of a book, coupled with a sale of the same book as an attractive physical artifact? Would additional material in the hard copy work affect behaviour?
4. There is a need for local or regional partner to provide basic e-commerce services.These should be sufficiently affordable so that small and medium enterprises can make use of them, it seems that the best way to achieve that would be to devise profit sharing schemes, so that partners providing ordering and payments systems would share risk and profit. One potential problem is that these partners, likely to be banks or ISP’s may be at risk from poor legal advice, as a result of which they try to own the content, effectively destroying the business model.
5. An opportunity to aggregate Creative Commons licensed content which is specifically useful to development. I spent some time explaining how the participants could find, and use Creative Commons licensed photographs on flickr. This could involve both hosting, and indexing Creative Commons licensed content, and would greatly increase the use of Creative Commons licensed material by non-profit, inter-governmental and governmental agencies at this point in time.

Edited to add: Mark Surman posted a comment that one should not forget the opportunity for appropriate technology, and business models for easy, cheap, print on demand. Even though I hadn’t mentioned this is my post previously all the participants expressed an interest in print on demand.