Poland, ACTA, and “Blackmail” Protesting
By awarding its 2011 Person of the Year award to “the protester,” Time magazine recognized that last year was a very eventful one for world events. Whether you’re talking about the Arab Spring, the Occupy protests, or something else, there was a surge of democratic movements in which we heard voices of people all over the world. “The protester” is keeping busy this year too, by rallying en masse against SOPA and PIPA, and apparently on Monday in Poland against the government’s plan to sign onto the Anti-Counterfeiting Trade Agreement (ACTA).
What really catches my eye in this article is how it pits the protestors against the government, as if they weren’t all part of the same democratic body trying to govern itself in the best way possible. Of course, those protesting the signing of ACTA don’t speak for all the Polish constituents to which the government is accountable. The protestors have their opinions, but copyright holders whose interests aren’t being adequately protected under current law might have different opinions, and the government should consider all of them when making decisions. It’s not surprising that a government could consider all these interests and then decide to go ahead and sign ACTA anyway, but what is surprising is Poland’s Prime Minister saying that it wouldn’t “give in” to the protestors and that it wouldn’t make “concessions to brutal blackmail.” The protestors have a legitimate opinion too, but does voicing it in this way (as opposed to maybe in a formal hearing) make it “blackmail?”
The conflicting interests are partly a result of a problem, which in oversimplified terms, is about the impact the Internet is having on copyrighted content-producing industries. If the advantage of the Internet is that it allows us to instantly share information around the world, its bane to many industries is that it lets us share their content with little or no accountability. If I, you, or someone else decides to upload a video clip onto YouTube, is there a presumption that it doesn’t violate any copyrights? If Google’s ContentID has automatically targeted the clip as infringing upon a copyright, does the uploader have to fight against that and copyright holders to prove the clip is permissible under fair use? What I’m getting at is that it’s hard to defend your rights under today’s system, and arguably we haven’t yet found a workable solution to this problem. The infinite reproducibility of digital files creates a heavy burden on copyright holders to adequately enforce their rights online, but also the expense of our legal system makes it so individuals are unlikely to respond to challenges from copyrighted content industries. Overcoming a copyright infringement/non-infringement presumption falls on someone.
Protestors are arguing that provisions of ACTA, if enacted, would shift presumptions so far against the people and in favor of copyright holders that it would create an environment of surveillance that invades the peoples’ fundamental rights. When I first read about how ACTA could invade rights so important that they’re fundamental, I was taken aback by the rhetoric. It’s a legitimate concern generally, but I’m not convinced that it’s a concern specifically with ACTA. Protestors are saying that signing onto ACTA will reduce the people’s right to digital privacy by strengthening the power of copyright holders to survey for infringement, but let’s look to the actual language of ACTA. In Section 5, Article 27, Paragraph 2, ACTA says the enforcement procedures shall be implemented in a manner consistent with the adopting country’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy. By that language, wouldn’t any changes in Polish digital privacy be because of changes in Poland’s laws regarding privacy and not because ACTA imposed lesser standards? This is a subtle distinction, but I think it’s an important one.
Another big criticism of ACTA is that the negotiations to create and amend its provisions happen behind closed doors. It’s argued that writing statutory language behind closed doors allows fewer to participate (ideally fewer participants doesn’t mean limited representation of interests) and for the process to finish quickly. Yes, allowing for broader participation would slow down the process because many more voices would have to be heard, but it also makes the product more democratically legitimate.
Sensing that their government signing onto ACTA will mean their interests will be given less weight than the interests of the more economically powerful copyrighted media industries, some people of Poland are protesting. I’m reminded of a lesson learned from one of my favorite books, Daniel Quinn’s Ishmael. If you’re unhappy with something and wish to change it, you don’t get very far by only pointing out that someone else’s solution to a problem is flawed. Of course people should fight to defend their digital rights, but protesting the signing of ACTA might only preserve the status quo regarding copyright protection, one in which the copyrighted content industries claim their interests aren’t protected. Even if the Polish protests are successful in shifting momentum in regards to their country’s support of ACTA, the underlying problem of balancing everybody’s interests remains and will surface again. How do we go forward?