Get your ACTA together

If alarm bells haven't starting ringing yet, then something is very clearly (and very seriously) amiss.

On Thursday 26 January, this newspaper reported that Malta had signed the 'Anti-Counterfeiting Trade Agreement', a law that would enable local authorities to monitor and up to a point control internet usage (though precisely to what extent remains difficult to gauge).

Before moving onto the legislation itself, a word or two about the sequence of events leading to the above revelation. Please note: "this newspaper reported". Not "the government informed us by means of a press release through its Department of Information". No indeed: if we got to know at all that Malta is party to this legislation, it was  only because a list of European signatories was published on the international newswires - and someone actually bothered to check if we were on the list.

Which leads me to wonder... where was the Department of Information in all this? Yes, that's right: the same DOI that is normally so very quick to email dozens upon dozens of official government statements every single day: about Tonio Borg's multiple State visits to China, for instance... which somehow always seem to conclude with the same old declaration that: "we will continue our efforts to foster and strengthen relations between the two countries". (Gee, and there I was thinking the purpose of such visits was to poison such relations, and cultivate an atmosphere of hatred and mutual distrust. Guess you live and learn, huh?)

Or how about the daily barrage of press releases - each accompanied by around 5 million gigs' worth of hi-res images, by the way) detailing George Pullicino's latest visit to the nearest shelter for abandoned puppies? Altogether now: awww, isn;t that cute? There's goes George again, showing us how all deeply he cares for the plight of our less fortunate, four-footed friends. And how good of him, too, to constantly remind us all that "a dog is not for Christmas". You spell it out to them, George! It's turkeys that are for Christmas, folks. Dogs, on the other hand, can be eaten all year round.

So George, allow me a tiny little word of advice. Next time you pose for a photo-opportunity with the latest adorable, doe-eyed mutt to have been unceremoniously dumped in a car-park (or tossed over a cliff, or buried alive, or whatever...) can you do us all a favour, and try not to look as though you'll gobble the poor creature up the moment you think no one else is actually looking?

Just a suggestion, that's all...

***

But OK, I admit that this article was not supposed to be about George Pullicino and his boundless appetite for self-promotion (but, damn it, how can I help it? He keeps getting in the way...) It was supposed to be about ACTA, and how our indefatigable Department of Information - which takes it upon itself to inform us of every single government minister's every single bowel movement, every single minute of every single day - saw nothing at all newsworthy in the fact that Malta signed this hugely controversial agreement behind all our backs.

The good news, however, is that government's best efforts to keep this quiet were all for naught. Within minutes of uploading the news item onto our portal, it spread like wildfire throughout the selfsame internet that this whole ACTA business is all about controlling... which incidentally might explain why so many people (in Malta as elsewhere) seem hell-bent on checking the otherwise unstoppable free flow of online information.

And now, some good news for a change. It turns out that a local anti-ACTA group was already in place, readying itself for precisely this eventuality. After Malta's involvement became visible to one and all, the resulting publicity swelled its numbers from a few hundred last week, to a couple of thousand (and counting) this morning.

Last I heard a public protest is now in the piepline... which my gut feeling tells me is a bad idea, as public protests in this country have an overwhelmingly consistent tendency to defeat the very purpose they set out to achieve.

But then again, at least a couple of thousand people seem to have understood that this is an issue worth getting worked up about. I, for one, think they have a very valid point.

 ***

Even as I write, the usual damage-limitation machinery has already set its wheels into motion. First a clarification letter by Messrs Busuttil and Casa, over how the matter was dealt with at European parliament level; then a press article by the head of the European Commission's Representation to Malta, Mr Martin Bugelli- who, by a staggering coincidence, just happened to have been previously responsible for the same old Department Of Information that failed to inform us of the event.

If the idea was to allay widespread public misgivings about this law, it seems to have been less than successful. At the risk of oversimplification, their combined arguments in defence of ACTA appear to be:

a) the law does not intend to criminalise internet users (my emphasis, folks), but rather to facilitate the prosecution of major piracy crooks like Megaupload;

b) the legislation aims only to curtail copyright infringement on commercial grounds, and will therefore ignore any not-for-profit initiatives (such as basic file-sharing);

c) that apart from worrying overmuch about such relative trivialities as 'freedom of expression', local and international  artists would do well to concern themselves with the potential loss of profits through copyright theft, and support legislation that would ensure they get the royalties they are owed.

Allow me to address these issues point for point.

a) To be perfectly honest, I couldn't give a toss what the law intends to achieve. I am far more interested in how the wording of the final law will eventually be interpreted and applied by the relevant entities (lawyers, judges, etc), regardless of whether this interpretation was in any way intended by the original legislators.

A simple analogy: it boots little to know that the people behind Malta's ludicrous drug legislation were motivated by the intention to target major drug traffickers. Judging by the practical results of their efforts, I would say that major drug traffickers are the very last people who need worry about ever doing time in Maltese prisons. Minor drug mules, on the other hand - you know, that altogether dispensable and eminently replaceable category of petty criminal, hired by drug trafficking networks precisely to traffic drugs on their behalf... well, these insignificant people are the only ones to ever actually get ensnared in the drug trafficking legal mesh... oh, and maybe the occasional harmless teenager smoking dope in Paceville (or wherever).

Bottom line? It is not the intention behind the law that need concern us, but the practical application of the law as interpreted by the law-courts. In ACTA's case, it is a safe bet that the legislation will not be locally applied to serious copyright pirates of the Megaupload variety... which leaves us only with the smaller, less insidious variety of copyright infringers, who I have no doubt whatsoever will end up bearing the full brunt of the law.

b) Article 27, Paragraph 7b lays down the following as a prosecutable offence: "to distribute, import for distribution, broadcast, communicate, or make available to the public copies of works, performances, or phonograms, knowing that electronic rights management information has been removed or altered without authority."

Do you see any reference to commercial activity in that paragraph? Because I sure don't. What I do see, however, are words like "distribute", "broadcast", "communicate", and (just to ensure it is loosely applicable to every internet file-sharing method imaginable) "making available to the public". Who's to say a local court won't interpret that to mean posting on your Facebook wall? Come on, folks, let's not be so easily fooled.

d) I would be the first to fully support artists in any bid to be adequately and fairly compensated - but only if the compensation is indeed adequate and fair. ACTA's provisos to this effect are neither. They are, in fact, simply outrageous.

The legislation itself states that: "In determining the amount of damages for infringement of intellectual property rights, a Party's judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price."

Honestly, do I even need to pinpoint the flaw in the above reasoning? OK, here goes: Let's take an ordinary internet user who decides to acquire a copy of a particular piece of software - for argument's sake, a video editing programme (retail price circa $3,000, if bought through ordinary channels). Let's say our imaginary PC-user decides that the price-tag is beyond his means, and decides instead to download a counterfeit copy for free using Bit-torrent (or whatever).

According to ACTA (and depending on national judicial authorities), in so doing the copyright holders would have been 'defrauded' by $3,000... and hey presto! That, therefore, must be the amount they are owed in damages.

Honestly, what a load of utter bollocks. The questions to ask in this scenario are:

a) What would the user have done, had downloading the free (or cheap) pirate version not been an option? Would he have paid $3,000 for the product? No. He simply wouldn't have bought it at all... which means that the coyright holder would have made a grand total of ZERO profit in that particular instance.

b) If ACTA successfully stamps out piracy altogether... would this fact alone ensure that all copyright holders would sell more copies of any particular product than they would under the present circumstances? Not at all. It would just stop people acquiring a product that they otherwise wouldn't have been able to afford (or wouldn't have paid for even if they could).

c) Does this mean that the copyright holders should not be compensated at all? No, of course it doesn't - but neither should they expect to receive the full retail price, from people who would never have bought their product at those prices anyway.

And this brings me back to the declared intention of this law, and I personally cannot seriously believe that the above, glaring flaw in ACTA's entire reasoning would have escaped the notice of Europe's top legislators. Call me a conspiracy theorist if you like - God knows I've been called worse - but I can only conclude that ACTA was designed to serve a more sinister and less commendable purpose than clamping down on copyright theft: i.e., to maximise profits of organizations such as Sony, Warner Brothers, Buena Vista, 20th Century Fox, etc... to name but a few of the 'poor, starving artists' who are so cruelly deprived of their royalties by those evil, file-sharing teenage mutant copyright pirates.

Now, I ask you all: is it so utterly implausible, so out of this world, that a government like Malta's would willingly aid and abet a massive legal scam aimed at artificially jacking up multi-nationals' profits?

Implausible? Out of this world? Get out of here...