May 22, 2010 | International commerce, Passage au crible (English)
By Alexandre Bohas
Passage au crible n°22
After secret negotiations, the European Union, the United States and Japan, joined by a dozen of other states elaborated in April 2010 a treaty entitled ACTA (Anti-Counterfeiting Trade Agreement). The aim was to impose more restrictive norms in the field of intellectual property.
> Historical background
> Theoretical framework
> Analysis
> References
Historical background
With the globalisation of economic-cultural exchanges and the rise of new information technologies, developed countries – strongly supported by transnational firms – have encouraged the international recognition of intellectual rights. Accordingly, the TRIPS agreement (Trade-Related Issues of Intellectual Property) was concluded in 1994 in the framework of the WTO (World Trade Organisation). It was then transposed in state-members’ legislations with the assistance of international organisations, advocacy networks and firms. However, this transposition generated strong reactions – in Brazil and South Africa – notably in the pharmaceutical sector about the AIDS treatment.
After 2007, while the United States encountered difficulties during the Doha Cycle, it led secret talks on the subjects of counterfeiting with the European Union, Switzerland and Japan joined by Australia, Canada, South Korea, Jordan, Morocco, Mexico, New Zealand and Singapore. In April 2010, the draft of the treaty has been finally released.
Theoretical framework
1. The legal and political structuration of capitalism.In a market economy, the capital accumulation lies in legal and political structures. Assisted by industrialised states, major corporations, owners of brand, copyrights and patents, have undertaken to widen and deepen their stranglehold in privatising more and more intellectual property goods. Whereas the latter are non-rival – their actual use not endangering future uses – firms wish to receive a fee per every purchase. In doing so, they « build scarcity » according to the phrase of Christopher May, and assure substantial income.
2. An unequal access to intellectual property governance. In a globalised world, this regulation mechanism is often regarded as respecting all the stakeholders. In this respect, it continues to nourish projects of cosmopolitan democracy on a global scale. Yet, this is not the case. To the contrary it confirms the domination of transnational firms and Western governments in a domain which involves civil society, consumers, and developing countries.
Analysis
Described as a modest effort of customs coordination, ACTA marks actually a major turning point. It proposes firstly a reinforcement of cooperation in the matters of data-sharing on counterfeiting acts particularly perpetrated on the internet. In addition, it reinforces the 61 article of TRIPS since it criminalises non-commercial individual behaviour such as Peer-To-Peer activities. Fundamentally, it harmonises legislations according to a strong approach of intellectual property protection by generalising the harshest practices and doctrines put in place fragmentarily and partially in national legislations. Let’s note that its formulation remains particularly vague concerning its mandatory nature and its enforcing domains, which hides asymmetrical power struggles between states, firms and civil societies. Once signed then ratified, it will support in each nation proponents of an always higher intellectual property protection. The latter supporters now press Western governments to assure a lego-political structuration of the world economy which is likely to assure a situation rent and a long-term prosperity to intellectual property companies.
Dealing with controversial questions, stakeholders of ACTA wished to come with an agreement at the margins of the world scene. Yet, this way of doing goes against new power struggles, notably the determining presence of emerging powers such as the BRIC (Brazil, Russia, India, China) whose development implies the purchase and import of intellectual rights. For all that these countries have been excluded from talks while they have already provided important efforts in the domain of copyright and patent protection with TRIPS. This method of negotiation shows the wish to impose brutally international norms once they are already negotiated, which reduces all the more possible contestations. In the same logic, it reduces to silence governmental and non-governmental organisations which could have reacted and mobilised public opinions. In this sense, the internal logic belongs more to the « raison d’Etat » than the « raison du monde » notion that Philip Cerny coined.
Talks of the ACTA project belongs to a politics of fait accompli. In doing this, they contradict the world diffusion of political authority which characterized now international relations. In fact, the number of issue-areas to deal with as much as the dispersion of legitimacy oblige now international policymakers to take into account developing countries and non state actors, and in the framework of multilateralism to take decisions by consensus. Consequently it is not surprising that these procedures provoke hostile reactions from developing countries and civil societies.
References
Anti-Counterfeiting Trade Agreement. Public Predecisional/Deliberative Draft, April 2010, available on: http://trade.ec.europa.eu/doclib/docs/2010/april/tradoc_146029.pdf.
Bohas Alexandre, Disney. Un capitalisme mondial du rêve, Paris, L’Harmattan, 2010.
Cerny Philip G., Rethinking World Politics. A Theory of Transnational Pluralism, Oxford, Oxford University Press, 2010.
EFF, « Preliminary Analysis of the Officially Released ACTA Text », April 2010, available on: http://www.eff.org/deeplinks/2010/04/eff-analysis-officially-released-acta-text.
FFII, « Analysis Anti-Counterfeiting Trade Agreement », April 2010, available on: http://action.ffii.org/acta
/Analysis#Executive_Summary.
May Christopher, The Global Political Economy of Intellectual Property Rights: The New Enclosures, 2nd Ed., London, Routledge, 2010.
Sell Susan, Private Power, Public Law: The Globalization of Intellectual Property Rights, Cambridge, Cambridge University Press, 2003.
Nov 16, 2009 | Digital Industry, Passage au crible (English), Structure of knowledge
By Alexandre Bohas
Passage au crible n°5
Located in Mountain View, California, the Google Company imposed the supremacy of its search engine on the Internet within a few years. While it launched a mass digitization of books five years ago, it declared in October 2009 that it would commercialize them with the support of 30,000 publishers.
> Historical background
> Theoretical framework
> Analysis
> References
Historical background
In December 2004, the creation of Google Edition triggered a lot of controversy in the international culture milieu. With the collaboration of Western universities, this firm has digitized 10 million books of which only 1.8 million belonged to the public domain. This mercantile approach to intellectual property has provoked strong opposition in North America, Europe and China.
Theoretical framework
Google Edition raises numerous questions about the commoditization, the monopolization and the de facto hierarchy among the global public goods to which books belong. Being at the heart of what Susan Strange termed « the structure of knowledge », the activity of the non state actor, Google, deals with the vectors of practical knowledge which continuously influence preferences, perceptions, opinions and collective behaviors. Thus, every potential hold on their genesis constitutes a fundamental stake in the structuring of the international scene which is as crucial as questions of security and production. And yet, in the area of virtual literature, Google has already realized a major breach. By mastering its means of diffusion, the Californian Company contributes to the consolidation of the American preponderance.
This asymmetrical situation provoked many reactions, mainly gathered by the Frenchman, Jean-Noël Jeanneney, and former Director of the National Library of France. All these reactions refer to cultural diversity, a principle which had already been used during the negotiations on free trade in the motion picture sector. These supporters of cultural pluralism are of the opinion that books just like films must not be submitted to the rules of the market. Indeed, according to them, books and films do not constitute ordinary products. On the contrary, cultural goods should be regulated by a regime which is different from free trade, which allows the less famous and competitive to be saved.
Analysis
With its offer of 2 million books, Google constitutes a strong competitor to traditional publishers, thus questioning the cultural autonomy of States. It also reveals the technological advance and the financial power of Google.
Wishing to remain in the lead of the search engine race, this company has presented the book world as a fait accompli with its proposed free access to excerpts of books. Although it accepts to withdraw the excerpts upon request of their legal owners, Google has obtained the commercialization of numerous copyright-protected books after negotiations with the representatives of the book sector. Consequently every reader will soon be able to acquire a licence the incomes of which will be shared between Google (37%) and the copyright owners (63%).
As first to move, Google has formed the critical mass which should deter likely competitors, such as Microsoft, from entering this new market. All the more so as any new competitor will be legally obliged to obtain the approval of all the copyright owners to carry out digitization according to the October 28th 2009 decision of the U.S. tribunal of New York. Some publishing houses which wish to benefit from greater Internet visibility such as Vrin or L’Harmattan in France have already accepted to make excerpts of their series public.
Google has become a key player on the Web in competition with Amazon, the foremost digital bookstore. It has quickly constituted a virtual library by simply collecting masterpieces of world literature. In other words, this company has established a central position at the global level by colossal investments and an aggressive penetration of the literary sphere. This position guarantees Google the internet traffic of numerous readers as well as advertising revenues. The latter come in addition to the commercialization of the future licences. However, we should note that this library forms more a vast maze of scans, made available through mercantile logic, than an organised set of knowledge structured according to cognitive and didactical principles.
Yet, alternative undertakings of digitization with much lower funding are reduced to look for financial and technological assistance from Google. As for the Europeana and Gallica projects are concerned – which represent 4 million documents in 26 languages – they remain at the state of mere prototypes. All this underlines the vulnerability of cultural-diversity advocates in this domain. Indeed, although Europeans agree on the necessity of constituting a digital legacy with independent operation, they are now confronted with a dilemma owing to their lack of reactivity. Either they are condemned to marginality on the web; or they must submit to market laws imposed by Google. In other words, Google Edition represents not only the successful offensive of a private and transnational operator but also one of the vectors of American preponderance.
It should be underlined that Google shapes the act of reading and the reader through their practical knowledge by the choice of scanning some books and not others. The commoditization of content which it offers on numerous back-ups, contributes for example to the transformation of reading, which becomes more segmented, fragmented and discontinuous. In addition, as operations of digitization are mostly undertaken in the United States in collaboration with universities, they also favour a specific vision of the world. The latter appears notably in the hierarchy of references, their classification and their order of appearance. Moreover, it hallows the dominant use of the English language since half the references are in English. Finally, this logic systematically favours the first scanned works since Google algorithms classify using the criteria of the number of links and amount of fame.
One could think that the ongoing digitization undertaken by Google consists only in a modernisation of data processing. But, in fact, this digital coup reinforces above all the symbolical domination of the United States. As a result, the New World Republic of Letters – which Robert Darnton regards as emerging – will be structurally American, contrary to what the theorists of American decline annunciate.
References
Chartier Roger, « L’avenir numérique du livre », Le Monde, 26 oct. 2009, p. 20.
Darnton Robert, « Google & the Future of Books », The New York Review of Books, 12-20 Feb. 2009, pp. 9-11.
Jeanneney Jean-Noël, Quand Google défie l’Europe. Plaidoyer pour un sursaut, 2ème éd, Paris, Mille et une nuit, 2006.
Mattelart Armand, Diversité culturelle et mondialisation, Paris, La Découverte, 2007. Coll. Repères.
Strange Susan, States and Markets An Introduction to International Political Economy, 2ème éd., Londres, Pinter, 1994.
