My title is purposively provocative because the issue is too important to dismiss. The traffic and volume of the comments about these pieces of legislations has been overwhelmingly against them. Yet, they miss fundamental points which makes the effort to oppose them hollow gestures at best and misguided at the worst. Why?
The internet is being tamed and “civilisation” is coming. Are we ready?
The first reason to cheer is that the legislation has finally brought the issue to a head. To put it differently, but directly, if there was not a problem why does there need to be a law? The issue has been festering and the industry has not resolved it. Now, because the industry has been unable, or unwilling to address it, the politicians have become involved. Politicians do not seek out problems; they arrive because their constituents, or their interests, lead them to the problem. The problem has emerged and because it has not been solved by the parties involved, the politicians have arrived.
Like the old western frontier, the electronic frontier has shown that it needs to be tamed because it is not doing it on its own. The cowboys and cattle barons are slowly giving way to civilisation, farmers and fences. The economy is changing and with it property rights of a sort are emerging. The property rights still to be defined so it can clarify who makes money and how they make it. This leads us to the second reason to cheer.
The future of work is bound up with intellectual property rights
Second, the issue is, at its heart, a pragmatic one. How does the internet create and sustain value? We can remove the legal limits on content, but then how do we make money without intellectual property rights? We talk of freedom, artistic expression, and creativity, but at the end of the day, someone has to get paid. How they get paid? Where the money comes from? Information may want to be free, but someone has to eat. The key unanswered questions behind these pieces of legislation are how we assign property rights and copyright to information so that value can be stored and extracted from it.
Without ACTA, POPA, or SIPA the internet is in danger of losing the intangible elements needed to make an economic system work: trust. The economic engine is driven by the implicit (and explicit) belief that our abstract property rights will be respected and enforced so that we can create and store value. Without the structure, the economic exchange will not get beyond the barter level. One future is to continue this trend and create guilds, another is to allow great monopolies to flourish (Microsoft, IBM) but neither is a sufficiently satisfactory model for harnessing or unleashing (depending on your perspective) the economic growth that is available to the internet. See for example, the analysis of the creative industries in this UN report on the Creative Economy especially part 3 explores this issue.
In particular, the legislation is showing that the individual artists, those people creating the work, can get paid for their effort. By developing and enforcing their copyright, we can see individual creative workers getting paid for that work. What this will require, though, is a fundamental change in the way work and intellectual property rights are created and enforced. In a sense, we are on the cusp of a change in how work is rewarded in the internet era. The future of work is bound with how creative rights rebalance the relationship between the worker and the company. What is still needed is a debate on this issue, are the implicit issues within this debate. Yet, there has been little discussion of these issues within the hype and hyperbole. At the root though, these issues are about how creative rights, intellectual property rights, and copyright exist within the information economy. ACTA, PIPA and SOPA are imperfect but they are trying to solve the problem.
It is worse than censorship; it is how laws are made.
The third reason to cheer is that the ACTA, PIPA, SOPA have revealed some of the nonsense that is being bandied about the internet concerning these topics. What is revealing is that when the United States Trade Representative (USTR), which is negotiating the ACTA, issued a public call for evidence for the2011 Special Super 301 report. The USTR is the one who negotiates in the United, in December 2010; it only received 49 comments from the public. (See page 1) Why? The issue, as this saga reveals, is the paucity of attention to the details about how laws and international arrangements work. Thus, the idea that all of this is “censorship” shows how susceptible the internet is to demagoguery and the excited whims of activists and activist groups. To put this in context, the request for evidence in the UK regarding the post-legislative scrutiny of the Freedom of Information Act received 113 submissions.
At the same time, the ACTA has been developing and in circulation since 2006. The issue has not emerged overnight. We may wish to think we are changing democracy or politics, but what this experience shows is that public are as disinterested as ever until the argument is framed in such a way “censorship” that it excites their passions. The consistent call for action, by some has been present, but to say that what has occurred today misses the point of political action. What is required is continual effort and understanding the process. In effect, you have to be part of the process to shape the process. Too often, people avoid being involved because they either are not interested, or they do not have the time. Yet, if the issue requires sustained interest, then we all need to get involved. Closing the internet for a day is not the answer. The answer is a sustained education of the public as to what is at stake and supporting their political involvement both directly and indirectly.
In the end, there has to be an end to the hyperbole. We should begin with existing information. Unsurprisingly, to anyone who has had the misfortune to have to study the trade negotiating process, a lot of this information is already published. Despite claims, such as this, that the whole treaty was negotiated behind closed doors, or this, that the treaty is somehow unconstitutional (ignoring the President’s constitutional power to negotiate treaties (the senate has to approve) and the historical role of Special 301 report) delegated authority to negotiate trade agreements), the information has been available. From the hype and hyperbole regarding the ACTA, one would expect that the National Security Agency (NSA) was involved. Yet, the actual situation is rather banal. The United States Government has published information on ACTA and the negotiations along the way. Is this everything? No. Yet, it makes us realize that for the interested observer, or tired graduate student, the information is available.
If the industries that deal with intellectual property rights are to take this issue seriously and effect change, they need to do more than whip up interest. We need to move beyond headlines such as “’SOPA Blackout’ is Web’s political coming of age” and The week the web changed Washington. Neither approach is true nor accurate and distorts the issue. The web has been political since it began and the major players (Apple, Microsoft, IBM, and Oracle) have been political active as well. Moreover, Washington has not been changed. One bill has been defeated, but it will return in one form or another. In effect, the never ending political cycle, that is democracy, continues. What has changed, at least in the short term, is interest and attention has been focused on the issue. Yet, in a democracy that interest is easily distracted and diluted by other events. (For a good analysis of this problem Byron D. Jones work). The sustained focus does not exist. Were it to exist, then we could that that Washington had changed because a new institutional player would have joined the game. Instead, the same interests remain, but just in a different form. To paraphrase the Four Tops “It’s the same old song, but with a different meaning”.
In the end, we should be thankful for ACTA, SOPA, and PIPA because they show that people are trying to solve the problem. What remains to be seen is how well we engage with that process. We can either support it or oppose it. If we oppose, we need to prepare an alternative. Anything less is simply believing the hype and abrogating our democratic responsibility. The choice is ours.
What is to be done?
- We need to be clear about the information available. I have not seen one article on the internet actually link to the USTR ACTA page. If there is to be an informed debate, we owe it to our readers to direct them to the relevant information.
- The industry has to begin to demonstrate what legislation it wants. It cannot sit in the backseat complaining. It will have to get involved even if it is only setting up a political action group (PAC) to try to influence politicians.
- The industry and the relevant interested public, needs to become aware of how global trade agreements are negotiated and the process by which they work. Far from being undemocratic, the negotiating process was agreed democratically. Moreover, the final product has to be agreed or amended by the signatories so the public do have a say and can hold their governments to account.
- We need to explore the future of work and how creative work, work that attracts an intellectual property right, can be managed. The relationship between employees and companies is changing. In the end, it will be on that frontier will be where the issue is resolved.
Image via the European Commission Joint Research Centre - Travel time to major cities: A global map of Accessibility. Copyright 2010, Office for Official Publications of the European Communities, Luxembourg.
What is your opinion on ACTA, SOPA and PIPA? Do you think any good can come of it? How do you think intellectual property rights should be protected online?
Lawrence Serewicz is trying to understand and explain the American idea. The question is whether America will change the world before the world changes America. He is the author of the book America at the Brink of Empire: Rusk, Kissinger, and the Vietnam War. On Twitter he is known as @lldzne.
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