Lithuanian Minister of Justice: “On ACTA. Why did it all explode now?”

by Stephan Kinsella on February 22, 2012

Remigijus ŠimašiusAs I noted in Lithuanian Minister of Justice Condemns ACTA and Calls for Re-evaluation of IP, a friend of mine, Remigijus Šimašius, the  Minister of Justice for Lithuania and an Austro-libertarian (he authored a chapter in the book I edited, Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe), had previously criticized ACTA. Now he has two more posts on this topic:

At my request, he sent me an English translation of his posts, which I append below. The language is not perfect since it was a quick translation, and the argumentation is  directed more to Lithuanian than to a US or international audience, but this is an important piece.

On ACTA. Why did it all explode now?
By Remigijus Simasius
(Translated from Lithuanian by Adomas Sliuzinskas and Eimantas Vaiciunas)

Part I

When Lithuania was reached by waves of global discussions and protests regarding ACTA, many found themselves asking “Why is it now, that this massive agitation is happening, and why is this document causing it?”

These questions become even more important when it turns out that this document doesn’t bring anything new to the current situation: most of the provisions have already been active in Lithuania and the most threatening ones use words can, not must.

Protests of February 11th might seem even stranger because protesters consisted of well educated youth, modern intellectuals and the bulk of protesters having read the document is a rare thing. Don’t they care about authors and inventors?

In haste, many start to marginalize these protests, equate them to the leftist Occupy Wall Street and similar movements, whose members don’t discern what’s theirs and what’s not, who don’t respect others’ work and property, in a word—pirates.

Protesters haven’t really decided on what are they basing their own statements against ACTA. Is it the threat of distinct provisions to the freedom of the internet or to freedom as a whole? Or is ACTA reflecting deeper problems and it is only an illustration of how we’re going the wrong way with protection of intellectual property?

Having been concerned with the topic of intellectual property for some time now, I have a few observations about the source of this sudden explosion.

First, ACTA have been kept secret for a long time and discussed only with the chosen ones. That is until Wikileaks leaked it. Making it public just a few months ago didn’t help much, as it looked more like a formality than a beginning of a real discussion.

Already taking part in conspiracy theories, ACTA lead many to believe that something is wrong, or that they’re plainly being fooled.

Second, ACTA succeeded attempts to push SOPA and PIPA in United States of America. These acts had designs of more radical steps in globally protecting author rights and patents.

I’m going to remind you that, being concerned with these acts, internet community mobilized so immensely, even Google actively campaigned against it, with numerous websites, Wikipedia among them, having a black-out strike for a day.

On one hand, rejection of SOPA and PIPA created a victorious spirit among opponents of these initiatives, and gaining a victory often motivates for another battle. On the other hand, many saw ACTA as the real Trojan horse, whereas SOPA and PIPA must have been only a smokescreen.

Third, ACTA is not a single, but another step in protecting intellectual property with new measures. Biggest measures do not necessarily overfill a cup—it overflows exactly when it has more than it can contain. In this case, ACTA may have been the last few drops that had to overflow and exhaust all patience.

The thing is, we have been hearing stories about protection of intellectual property crossing the line for over a decade. One time we hear about some scouts enjoying a wild-fire, playing a guitar, singing some pop songs and then having been punished for not having bought a licence for them. Another story tells us how a researcher has to ask copyright-holders for a permission to quote for a scientific article. Another tells us about photographer getting punished for publishing his own photos on the internet. And then digital cameras and phones are taxed to “compensate” authors.

To sum up, “You don’t hold the hearts of a people by suing their children”, as professor Lawrence Lessig once wrote.

So far I’ve briefly discussed the emotional and circumstantial causes, that lead to a global commotion on ACTA. But there are still causes that are systematic. Find out more about them in the next part of this article.

On ACTA. Why did it all explode now?—Part II

In the first part of this article I asked why ACTA caused such a public explosion. Obviously, there were more and bigger steps towards it. For example, Lithuanian law, “compensating” authors with money gathered by taxing mobile phones and cameras, coming in force in a few weeks time. I have written about correlating causes and last few steps toward exhaustion of patience and promised to dive deeper.

Be warned though, everything is more complex down there. This short article won’t fit all the arguments, counterarguments and answers. I am just explaining my view on other causes of the big bang. So…

Fourth, more and more people start to think that intellectual property (further – IP) protection laws are not to protect artists and inventors, but to finance big copyright industry. It is very convenient to manipulate authors and inventors, and it is done with great success. But certitude in the fact that authors, as well as progress, are benefiting from current situation in the system starts trembling, once one sees what part of these “compensations” reach authors, or the revenues of law firms specializing in IP laws. The same happens when big corporations are seen on a shopping spree for patents, not because of scientific advances or innovations, but to secure assets, or just for the sake of suing competitors. The same when departments of patent analyzing lawyers overgrow research departments in research centers.

It must be said that some inventors do not patent their inventions on purpose, to keep the invention secret, as patenting an invention means its forced(!) publication. Finally, companies gaining a lot from patent protection, loose a lot for the very same reason as well. E.g. if there was no IP concept, European Commission would have never succeeded in forcing Microsoft to reveal the secrets of their software.

Fifth, system of IP grows increasingly complicated, causing chaos in real life. E.g. if we look at legal relationships between the most popular manufacturers in mobile, computer and software industries (Apple, Google, Microsoft, Siemens, Nokia, etc.) we would see that, because of patents, virtually every one of them is suing each other. It definitely does not add to clarity in this highly dynamic and expanding field, costs huge amounts of money while stopping innovations at the same time!

Sixth, costs of knowledge distribution and production (copying) have dropped dramatically. Just think about how much it costs to upload a book (a song, a music video, a movie) to the internet versus printing or production of other traditional media (CD, DVD, VHS). Sadly, traditional production centers (publishers, Hollywood companies and others) are clinging to keep the same prices. It’s inconceivable to many, and it’s not very practical either.

The price of introducing a new product to the marker is falling too. Main reason – economies of scale. Today an intellectual product automatically and immediately spreads globally, despite of where it was created.

Seventh, less and less people are convinced that tools of IP guarantee scientific and creative activity. A lot of relatively new phenomena are confirming these doubts. To name a few: open source software, bloggers, artists, freely distributing their work (which, as a rule, just increases the sales and revenue for the them), marketing strategies based on free or ad-supported product while full-featured product must be bought.

When a lot of people see the possibilities of acquiring new low-cost products, and then see patent restrictions taking these possibilities away, most of them get angry.

Eighth, a lot of people question usefulness and ethic aspects of some of the more recent inventions, protected under IP laws. E.g. can human genetic code and its modifications be patented?

Ninth. A question is raised in other, less controversial, fields, is artificial stimulus to research, while giving inventors and their investors lawful monopoly to install these inventions, a good thing? There are lots of side effects to that. E.g. more resources are being dedicated to invention of patented products while less of them are being provided to the cause of actually making research results available to the market, i.e. general public.

The investment into research itself is done not as much because of a potential benefit to be seen, but because a company might experience disproportionately large losses and be pushed out of the market just because a competitor might patent some tiny invention.

Still, we haven’t discussed the most important reason—why did ACTA cause such an anxiety and why is IP protection seen very sceptically by not only left-winged dreamers, who’s wishes of banishment of property concept, I hope, will never come true.

Tenth, and, I think the most important, reason is that IP concept itself is not thorough. I wrote about it back in 2004 in an article “Intellectual (Non)property And Its Grimaces”. Discussions on IP concept have been taking place for well over a decade in academic world and they are getting increasingly intense.

Following questions are raised more often: is intellectual property a property, or just a privilege of state? How should interests of authors and inventors be protected once IP concept changes too?

ACTA is not the only subject of discussions today. There are no taboos over things that went unquestioned for quite a long time. Discussions are not only about the tools for protecting IP, but about the IP concept itself. Skeptical attitude towards ACTA is not being shown only by those, who think they deserve everything for free—pirates and socialist dreamers.

To summarize, today inventions, research and other intellectual activity are taking bigger and bigger part of our lives. Objects, protected by IP laws, had revolutionary advances over the last decades, while IP concept and its mechanics were evolving in the same direction, set in the end of 19th century. It’s probably time for us to re-evaluate the institute of intellectual property and find out if it needs some radical changes.

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