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A different view on ACTA

Published on January 27, 2012 by: in: Politics

It seems that the uproar around ACTA has turned into a complete nonsense. The discussion on this crucial contract has become absolutely one-sided and often strayed from the point. We forget what the purposes of the treaty are. The situation helps to realize that non-governmental organizations, journalists and elites express openly their opinions on issues about which they have no idea. In spite of the decision to enter into the treaty, Polish government should make clear that ACTA does not resemble Big Brother from George Orwell’s novel.

The conspiracy of corporations or the struggle against theft?

Is ACTA aimed against citizens? Is the contract unprofitable for them? I am not a lawyer but all the information which I analyzed prove it is not. According to the discourse, it seems that the purpose of the treaty is to limit the freedom of Internet users with reference to the conspiracy of both politicians and corporations.

It could be quoted as a shining example of manipulating audience by the use of social engineering. Thousands of Internet users vehemently defend the endangered freedom of speech and the freedom of the Internet. I asked a number of people, who added photos entitled Stop ACTA on Facebook, what is meant by this danger. Hardly anyone answered the question.


ACTA, however, aims to protect property rights. The treaty is not the devil incarnate but the struggle with the omnipresent problem of robbing companies and producers by means of illegal copying. It should prevent the situations in which, for example, a company has invested billions of euro to produce a new generation drug, make some technological progress as well as improve the condition of the thousands of patients and, after putting the drug on the market, a competing company that spent no money for research has copied the drug illegally and sold at a cheaper price. This decreases the willingness to invest in research and development. As a result, technological progress becomes delayed and, when it comes to pharmacy, possibilities to produce new drugs for severe illnesses are reduced.

ACTA should popularize the standards of protecting property rights. The principles of the treaty seems legitimate, unless someone questions the validity of property rights.

The dilemma with ACTA concerns mainly liberals. Two liberal values oppose each other – the protection of citizens against groundless surveillance and the presumption of innocence vs. the observance of property rights. Our democratic-capitalist system of values and law is based on them. As a consequence of the era of the Internet (and regardless of ACTA), these two values suddenly became contradictory. It seems that the protection of property rights violates the struggle against surveillance and vice versa – the struggle against surveillance contributes to the violation of property rights. Is there any neat solution? No.

The idea of preventive measures allowing Internet service providers to cut off access to a particular service without any proof of guilt is undoubtedly against the law. But, according to the interpretations of ACTA that I familiarized with, the treaty does not stipulate it…

Moreover, the majority of commentators does not realize that both standpoints are supported by numerous corporate lobbies. Not only ACTA has influential supporters (such as the representatives of music industry or publishers). The statement that ACTA is supported by bigwigs and opposed by pro-democratic citizens seems wrong. ACTA is unprofitable for great Internet entrepreneurs who allow users to distribute music, films and other materials protected by intellectual property rights.

Such entrepreneurs make big money by means of selling a great amount of advertisements with reference to numerous website viewers (who distribute legal or often stolen material). In other words, they make money by means of turning a blind eye to the instances of theft that take place on their websites. It is worth nothing that the entrepreneurs do not reward producers.

If one guy robbed another during a party at my own home, I would be worried but my guilt would be very indirect. It would be undoubtedly moral to find out who did that. Such person should have not be invited again. The problem would appear if I started to invite pickpockets at my parties and, moreover, if I made money by such instances of theft.

Is the business fair? It is not. Why we do not condemn such procedure but we attack those who demand payment for their hard work? In addition, we paradoxically do it under the banner of the fight against system. We have been manipulated.

ACTA is aimed to persuade the owners of websites to take more care of materials published by users. But it should not come as a surprise. Lawyers need to explain what the abovementioned care will mean in practice. The government should specify that notion clearly. Any sanction must be proportional to guilt. Preventative measures aimed against website users must be avoided because they violate the presumption of innocence.

How does the digital era influence our value system?

The debate on ACTA is also the impulse to look into our value system that has been strongly influenced by the digital era. The Internet makes us stoop to actions which would be resisted in real world. The majority of readers would not leave a shop with a CD hidden in their coat pockets. The majority of us consider that is theft.

Everything changes when we turn on our computers. It is likely that most readers have illegally downloaded a CD once or twice. Hardly anyone may feel a pang of remorse for such behaviour. But it does not differ from stealing an original CD from a shop. This is also theft. People explain that they would buy CDs if they were cheaper. But if someone cannot afford a plasma TV or a Porsche car, it does not mean that he has the right to steal them.

Our value system becomes inconsistent. People do not understand that the virtual world does not differ from the real world. So why the virtual world should be governed by different rules?

The danger of constant surveillance

It is believed that the greatest danger of ACTA is the surveillance of the Internet users. I would feel uncomfortable if somebody knew in details with whom I communicate, where I spend my time etc. It would violate my privacy. This issue may be the source of tension between the liberal protection of property rights and the liberal protection of citizens’ privacy.

The problem is that our actions in the Internet are recorded anyhow (Has anyone watched the American film “Enemy of the State”?). It is beyond any doubt that Internet providers know in details which websites we visit. The EU Data Retention Directive obliges Internet providers to store itemized bills and data concerning users’ actions for two years, in case law enforcement agencies examine them. This serves as the example of surveillance. Legitimate protests against the Directive cut no ice. Polish law enforcement agencies may have access to the private data of citizens almost in any case.

Does ACTA make things worse? Let me repeat that I am not a lawyer but the truthful interpretations that I familiarized myself with prove it does not. So why we struggle against ACTA, which is aimed to protect property rights, instead of fighting against the repressive Data Retention Directive?

That dispute concerns the economic model of the digital era.

To be honest, the struggle against ACTA does not concern the treaty because hardly anyone understands its conditions. Having taken this into consideration, do the abovementioned issues make any sense? Yes and no. No, because Michał Boni  pointed out rightly that ACTA does not change anything in Polish law. It should be obvious for anyone who read the EP resolution of November 2010. “ACTA does not include provisions modifying the substantive intellectual property rights (IPR) law of the EU or the other ACTA parties, but rather establishes, for the first time, a comprehensive international framework to assist the parties in their efforts to combat IPR infringements effectively, and it does not therefore imply any change to the acquis communautaire.”, the resolution stipulates.

This is just prelude to the discussion that will soon heat up. The discussion whether cracking and the theft of intellectual property by means of Internet will become commonly allowed or not. Will we punish cracking or will we remain in turning a blind eye to it? Will the future business model be based on free access or rather on the sale of particular products, in other words, on the principal rule of free market economy? Which aspect will be more important – a website with content or a producer? How to reconcile the interests of producers with the interests of Internet users? Will the state agree to introduce the so called open public resources (with free access to any intellectual property that has been produced by means of public money), although they may be completely unprofitable for Polish culture and science?
That dispute concerns the business model that will dominate the digital era.

Translation: Aleksandra Kozłowska

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About Błażej Lenkowski

Graduate of International Relations at The Faculty of International and Political Science Studies of the University of Lodz; president of Industrial Foundation the publisher of Liberte!; entrepreneur.

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