Canada and the politics of ACTA implementation

Nice post by Sara Bannerman about the potential effect of the Anti-Counterfeiting Trade Agreement (ACTA) on Canadian copyright reform. I think she has the issue mostly surrounded, and that possibility number three – a treaty will simply introduce another element into the basics of the current copyright debate – is most likely. As she writes, pro-ACTA groups will say Canada has an obligation to implement the treaty; anti-ACTA groups will say we don’t and that it’s illegitimate (an argument that grows stronger every day the text stays secret).

Sounds a bit like a continuation of the Canadian debate over the WIPO Internet treaties, doesn’t it?

But the really big question is, will the Canadian government implement the ACTA (assuming it signs on)? While my guess is as good as the next guy’s (depending on who the next guy is, I guess), it’s worth remembering that the fact that Canada signs a treaty doesn’t really mean that much in terms of whether or not Canada will actually change its laws. As Howard Knopf has written several times, and as Sara also notes, signing a treaty does not require its implementation. If it did, the U.S. and Canada would have been implementing their Kyoto-mandated greenhouse gas reductions for about a decade now.

Directly related to this point, Queen’s University International Relations professor Kim Nossal was in Mexico City this week for a lecture that dealt extensively with the myth of Canadian multilateralism. His point was a simple one: Canada, like pretty much every other country, follows its own conception of the national interest. Nossal remarked that in cases like Kyoto and the Law of the Sea, Canadian governments of all stripes have demonstrated the willingness to act unilaterally and to ignore treaty obligations when they thought that the costs of compliance were too high.

The same is true of the WIPO Internet treaties and will be true of ACTA. Any government – Conservative or Liberal or NDP – will consider the potential effects of the treaty on its political fortunes and (relatedly) on the economy. It will also consider its effects on its international relations. While each party may come to different conclusions about how exactly ACTA implementation will affect each of these factors, domestic politics and international relations will determine whether and how the treaties will get implemented. Furthermore, my hunch is that it is unlikely that the treaty in and of itself will alter anyone's conception of what is in their national or specific interest, if only because the legitimacy of the treaties can be so easily called into question by asking why they are being negotiated in secret outside the World Intellectual Property Organization, the World Trade Organization, UNESCO or any other copyright-related international institution.

In this sense, ACTA will do little but add another rhetorical tool into the arsenal of proponents and opponents.

To put it bluntly, it's all about pain and reward. Treaty opponents will seek to convince the government that implementing the treaties will hurt the government, politically or economically, and/or that non-implementation will help the government. That’s what the Fair Copyright for Canada and the Canadians Against Proroguing Parliament Facebook groups are all about.

Treaty proponents will try the opposite: arguing that implementation of the treaties will bring political and economic rewards, and that non-implementation will carry a cost.

Signing ACTA will only be the beginning (or continuation) of the debate. It all comes down to the politics, and it's way too early to guess how any of this will fall out. But arguments that Canada has an obligation of any kind (moral or otherwise) to implement a treaty it has signed should be seen for what they are: rhetorical exercises masking self-interest.