Is there any Future for New IPR Treaties?

ACTA failed in European Parliament. What was the main objective? Protection of consumers against counterfeit products or rather protecting the intellectual property of the content industry? Precisely this confusion, the anti-piracy treaty ACTA (Anti-counterfeiting Trade Agreement) caused the deathblow.

Last week, a majority of the European Parliament against the treaty. A victory for democracy”, according to the opponents, who were able to mobilize millions of citizens to sign petitions or jump the barricades. ACTA is actually collapsed under its own ambition. The treaty was to end the trade in counterfeit products and downloading pirated software. The first goal came mainly on the objection of development organizations that ACTA access to generic drugs – which erroneously be mistaken for fake – would impede. The second goal was too tight to protecting the privacy of Internet surfers.

Thus, the discussion became bogged down in what is more important: freedom on the Internet or patent rights of pharmaceutical and music industries. The fact that negotiations on ACTA always took place behind closed doors – not in a transparent way, open for the public to follow- reinforced the feeling that ACTA was mostly an industrial lobby, having a big finger in the pie.

Many may feel that now Europe trashed ACTA this is a good thing. But it does not solve existing problems. Citizens should indeed be protected against counterfeit products, especially when health is compromised. Producers and writers should also be protected against misuse of their work. Consumers, however, want to be free and wish to anonymously surf the web.

This most recent event in intellectual property shows the failing IP international legislative system. After other recent legislative initiatives could not be taken off the ground – as is for example shown by the legislative process to create a new unified European Patent Court – one might wonder whether it will ever be possible again to change IP regimes by means of legislation rather then by case law (which is by nature more incidental and prone to national politics). As Jonathan Koppell shows in his book “World Rule“,  Global Governance Organizations like WIPO, WTO and other legislative bodies entrusted with international IP legislation, tend to face trade-offs between legitimacy and authority, often violating democratic norms, sacrificing equality and bureaucratic neutrality, to satisfy key constituencies and thus retain power.  So it is not that all together strange that no major new treaties on IP can come off the ground.

This should worry the IPR community, as IPRs are subject to fierce criticism all over the world and can only be properly addressed by legislative instruments that force national countries to unify and coordinate new IP rules. However taken the current political climate, don’t expect anything from international treaties anytime soon.