The case for creation and innovation vs. ACTA
Pellegrini (francois at pellegrini.cc)
Version 0.1, 12/04/2012
est professeur en Informatique à l'Université
de Bordeaux. Il est aussi un militant historique en
faveur des logiciels libres et de la libre expression
sur le Net. Voir à ce sujet le site de l'Association
française pour les logiciels libres AFUL.
L'auteur a été invité à
présenter son point de vue par par le Groupe
Socialistes & Démocrates (S&D) du Parlement
au nom de son président, Hannes Swoboda. Cf :
L'exposé a été repris lors
d'un colloque organisé par le Global Progressive
Forum concernant l'Intérêt de la réglementation
dite ACTA dans le domaine de la protection de la création
Sur ACTA, voir l'article de wikipedia: http://fr.wikipedia.org/wiki/Accord_commercial_anti-contrefa%C3%A7on
Voir aussi une
page consacrée à la question par Toute
La ratification de ce traité par la France fait
l'objet de nombreuses protestations.
Nous remercions François Pellegrini de nous avoir
communiqué le texte de son intervention. Automates
to a Chinese proverb, when a wise man points at
the moon, the fool looks at his finger.I thank
very much the organizers of this conference to have
invited me to question the merits of ACTA in the fight
against counterfeiting. Yet, it seems to me a bit like
discussing the merits of the finger, while we should
be discussing about how to reach the moon.
What is the moon, in our case? It is innovation and
creation. We are all conscious that, in a knowledge
economy, innovation and creation mean intellectual,
technical, cultural and commercial leaderships, that
is, jobs, wealth and wellbeing for our fellow citizens,
and even for the rest of the world.
Innovation and creation are at the heart of the Lisbon
agenda. Our society, thanks to the digital revolution,
is increasingly a knowledge economy. Hence, it is of
the utmost importance to target our policies toward
fostering of innovation and creation.
The knowledge economy differs in a fundamental way from
the traditional economy. Immaterial goods are not rival:
if I give you my watch, I no longer have it. If I give
you an idea, you have it and I still have it.
Because of this essential difference, lawmakers have
created distinct regimes. While material goods have
perpetual property rights attached to them, immaterial
goods receive temporary exclusion rights: after a definite
period of time, all immaterial creations belong to mankind.
The duration of this period defines a balance between
the rights of the public and the creators' rights.
The latter must thus not be seen as due rights for individuals,
but as a collective tradeoff.If exclusion rights do
not result in an incentive, they should not be granted,
nor extended, because in such a case the harm to the
public is not compensated.
For instance, look at authors' rights. The European
Council extended them up to 70 years after the death
of the author (93/98/EEC). Do you think that rewarding
someone 70 years after his death will encourage him
to create? Indeed not. So, whose rights do they protect
now? The rights of editors,indeed. But do you think
an editor that is payed back only after one century
is a good editor? Indeed not. So what?
One thing not to forget is that the amount of money
one can spend in one's yearly culture budget is limited.
It is even more so because of the crisis. By extending
the duration of authors' rights, editors manage to keep
old works out of the public domain, where they could
reach the public for just print price and compete with
the works they advertise. Authors that are no longer
edited have no revenue, as their works are locked in
editors' closets. Is this good for authors? No. Is this
good for the public?
Because of continuous copyright extension, no work more
recent than 1921 has reached the public domain. Every
time Mickey Mouse is about to go public domain,
a new extension is voted. See
you in 2018 to see what happens then.
Here comes the digital revolution. In the digital world,
copies cost zero. Copying is at the heart of the digital
world. When you view some webpage on your computer,
the data does not disappear from the web server it originates
from; it is copied from machine to machine, until it
reaches your screen. Trying to forbid copy on the Internet
is forbidding the Internet.
No automatic system can discriminate between a legitimate
act of copying and an allegedly illegitimate one. This
is why digital rights management devices, which the
Parliament voted to accept in 2001 with the EUCD directive,
are also a dead end.
All our devices are now digital. All of the works of
which we own a copy, we digitize them, all the more
doing so preserves them from the destruction of their
original medium. Digitizing is preserving. Copying is
even more so, because a given media can fail: a disk
crash can happen.
DRMs prevent users from copying, so they are circumvented.
The directive you voted says this is bad, but users
know it is good. Note that the EUCD directive also badly
harmed interoperability, which is a key principle in
the digital era, but this is another story.
Because people want to share things they like, they
put digitized works on the Internet, where others can
access them. Distributors say it prevents them from
getting legitimate revenues. Is it true? The question
is complex, but evidence shows this assertion seems
to be false. Even the HADOPI, the French administrative
authority in charge of tracking down file sharers, acknowledged
in its 2011 report (p. 45) that users who share most
are those that spend more on their culture budget. We
all know this fact, since the era of the audio cassette.
I am not the most qualified to discuss that matter,
so I will leave it to others.
So, let us consider the finger again. Can
ACTA impact the behavior of sharing? This question can
be easily solved by answering the more general question:
can any law change this behavior? The answer is: no.
Let us face facts: the closing down of MegaUpload did
not result in any sales increase for legal sites. Instead,
it fostered the development of several other means for
sharing. Your kids will tell you more about that than
Hence, ACTA would be useless as far as digital file
sharing is concerned. But would it be just useless,
I developed in a previous note some arguments on the
deterrent effect ACTA would have on the developers of
innovative software tools and services. Providing criminal
offenses for aiding and abetting infringements,
which goes well beyond the acquis communautaire, can
be used in many harmful ways, for instance against websites
leaking documents on the misbehavior of some corporation.
It enables private censorship without any prior decision
of justice, at the detriment to freedom of expression
and communication. Indeed, it places technical providers
in an unbearable position as private censors: they become
liable if they do not do it, and also liable if they
do it and are sued back. In psychology, it is called
a double bind, and makes people go crazy.
In the US, they found a solution: new planned laws would
guarantee immunity to providers that would act against
their users. In Europe, because of our history, we already
know the consequence of such a complete immunity: kill
them all and let God sort them out. Private justice
has little to do with justice. Yet, it is this very
slippery slope that all of these laws ultimately follow
when privileging private interests against public interest.
Some laws in this domain already violate the proportionality
principle that funds our legal system, and ACTA is a
further step in this direction.
As an engineer and scientist, my experience is that,
every time a proposed solution is ugly and does not
really solve the problem, it is because we try to solve
the wrong problem.
The vision borne by ACTA is the one of a Maginot line:
spending our money in 18th centurylike fortifications
that happen to be overturned by blitzkrieg and aviation.
The energy we waste in obsolete constructions makes
us vulnerable to players that invest now in real innovation.
Look for instance what happened to our patent system.
Because patent offices found more profitable for themselves
to grant ridiculous patents, and extended the system
to fields where it is economically inapplicable such
as software, innovation is endangered by patent trolls,
which extort resources out of innovative companies without
any benefit to consumers. Stockpiling patent portfolios
and crosslicensing make big companies live in a world
without patents, and innovative SMEs and consumers pay
the price for lawsuits and ludicrous licensing fees.
Money is wasted in legal fees, not in innovation.
Big companies base on patents to offshore jobs. They
think that their patents will prevent laidoff personnel
from being competitors on their markets, and will maintain
subcontractors of emerging countries into the position
of docile executors of their research departments, without
any ability to acquire themselves the knowledge necessary
to the conception of the goods they produce. History
showed how wrong they are. The offshoring of production
units prevents the necessary return of experience between
production and research units, weakening the latter,
or leads to the offshoring of research departments,
that is, more laidoff personnel. As a consequence, former
subcontractors acquire knowhow and become world leaders
themselves, as Japan did three decades ago, as Chinais
It is not innovation that creates unemployment, but
illdesigned laws that encourage shortterm profit and
tax evasion.I am a researcher. I have shares in a biotech
company that I helped a friend to start. I plan to start
another company with a PhD student of mine. I copreside
an association that fosters open innovation in the Aquitaine
région. Let a grassroots guy tell
you this: ACTA and its likes are not good for innovation.
They are just good for their writers.
The proponents of ACTA act just as hedge funds do. Some
large banks found more profitable to them to misuse
the money that flowed through their circuits, rather
than invest in productive activities. Writers of ACTA
do not care about innovation and creation. They represent
big players that want to control the circulation of
goods and maintain their rents, even if it results in
less innovation and jobs. In their time, gas companies
tried to preserve their rents against the emerging electricity
technology. So did railroad tycoons against automobile,
with the locomotive act. Same causes, same
So, to conclude, would ACTA prevent counterfeiting,
as the title of this panel says? Of course not. Does
ACTA need to be rejected? Of course yes. It is a wrong
solution to an illspecified problem.
have to rethink globally our innovation and creation
policies, so as to take advantage of the digital revolution
instead of combating it. As lawmakers, this is your
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