Conflicts at the Intersection of ACTA & Human Rights: How the Anti-Counterfeiting Trade Agreement violates the right to take part in cultural life
The human rights implications of intellectual property rights have received growing attention over recent years. Regardless of the approach taken, it is clear that both human rights and intellectual property rights doctrines intersect and often conflict. The goal sought by human rights advocates is to find reconciliation when competing interests collide, while keeping in mind the principle of human rights primacy. Intellectual property rights advocates, on the other hand, prescribe to utilitarianism and economic theories to weigh the benefits and protections attributable to authors and intellectual property creators. Recent international developments have resulted in the drafting and completion of the Anti-Counterfeiting Trade Agreement (“ACTA”), a proposed plurilateral agreement for the purposes of establishing international standards on intellectual property rights enforcement. Negotiated in closed-door forums, ACTA exports a level of legislative measures that greatly enhances the protections granted to authors of intellectual property, without providing the required protections for individuals to freely take part in cultural life. Coupled with greatly enhanced criminal enforcement measures, ACTA imposes provisions requiring member States to implement extra-legal measures that conflict with already- existing international obligations. Article 15(a)(a) of the International Covenant on Economic and Cultural Rights, which is binding law in 160 countries, recognizes “the right of everyone to take part in cultural life.” A recognized fundamental human right, the right to take part in cultural life requires member States to respect, protect, and fulfill the core obligations of that right. ACTA, however, requires that participating States take measures and enact legislation that would impose and expand criminal penalties on a wide range of actions in such a way as to stifle participation in culture. ACTA would also require adherence to strict levels of intellectual property protection without recognizing the rights of individuals to have the ability to access and participate in cultural goods. The right of an individual exists both as an author, as recognized by intellectual property, and as a consumer and collaborator of cultural goods and artifacts, as recognized in a human rights framework. ACTA attempts to assert intellectual property rights primacy, requiring State parties to take actions that run counter to fully realizing an individual’s right to take part in cultural life. If implemented as written, ACTA will result in State parties taking measures that would violate their obligation to respect, protect, and fulfill an individual’s right to take part in cultural life.