On July 11, 2012 the Instituto Mexicano de la Propiedad Industrial or Mexican Patent and Trademark Office (MPTO) issued a press release, informing that the Mexican ambassador before Japan had signed the Anti Counterfeiting Trade Agreement (ACTA).

ACTA is an international treaty. Morocco, Singapore, South Korea, Australia, Japan and the United States of America already signed it, although is not still in force as far as I know. In very general terms, the purpose of ACTA is attacking the illegal trade of pirated/counterfeited products, including their massive distribution online.

There has been a lot of controversy around ACTA, not only in Mexico but in many countries where the adoption has been proposed. A well-known case is the rejection of ACTA by the European Parliament after its approval by the European Commission.

It is not the purpose of this post starting a discussion about the possible benefits and risks of ACTA. However, there were two situations that strongly called my attention about the decision of the Mexican government about signing ACTA. First, I think it was odd that the Mexican President decided to sign ACTA (the President is the ultimate responsible of signing an international treaty) in spite of the explicit opposition of the Senate and the Federal Telecommunications Commission. Second, there are still a lot of informed people that believe that the Internet is “law-free” (or lawless?) environment beyond any State jurisdiction.

1. ACTA was signed in spite of the opposition of the Senate and a relevant Mexican government agency.

The Mexican Senate organized a Plural Study Committee (Grupo Plural de Trabajo) to analyze ACTA. In its conclusions, the Committee expressly requested the Executive Branch not to sign ACTA.

The position of the Senate is extremely important because ACTA needs the Senate’s ratification to be in force in Mexico. On the other hand starting September 1, 2012, a newly-elected Senate will start working. Perhaps the President (who will step down from office next November 30, 2012) thought that the newly-elected Senate will be more favorable to ACTA than the current senators.

The Federal Telecommunications Commission (COFETEL) is the government agency in charge of regulating telecommunications. COFETEL also expressed an adverse opinion to ACTA. COFETEL’S press release 65/2010 states that ACTA “could negatively impact the rate of penetration and general development of the national Internet industry”. The opinion of COFETEL was not binding.

During an interview with the Mexican journalist Carmen Aristegui, the Commissioner of the MPTO stated that the opinion of COFETEL was disregarded on formal grounds, basically because there was no evidence that all the commissioners approved the opinion against ACTA and COFETEL did not confirm its position after a request from the MPTO. Therefore, it is clear that the President (not actually the MPTO) decided to ignore the opinion of the federal regulatory agency in the field of telecommunications, in the in spite of the explicit purpose of ACTA of impacting the digital environment.

Now that the term of President Calderón is about to end, in less than two months the Mexican government took material steps to make Mexico part of two somehow controversial international agreements related with Intellectual Property (the Madrid Protocol and ACTA), although it is unclear when Mexico will effectively join both agreements. We do not know when the Mexican government will deposit the accession document to the Madrid Protocol (it may take months, even years) and ACTA needs the ratification of the Senate.

The approval of the Madrid Protocol and the accession to ACTA were unexpected.

Although the MPTO has been providing information about the Madrid Protocol for at least one year, by September 5, 2011 the Ministry of Foreign Affairs had no knowledge of Mexico approving the Madrid Protocol, but in April 2012 the Ministry of the Interior submitted the Madrid Protocol to the Senate for approval, which was swiftly granted.

On the other hand, after the negative opinions of the Mexican Senate and COFETEL, ACTA seem dead and still the federal government signed it without giving any prior notice.

Recently, the Minister of Economy stated that Mexico decided to join the Madrid Protocol because the United Stated conditioned supporting Mexico to join the Trans-Pacific Partnership (TPP) to the approval of the Madrid Protocol. I would not be surprised that signing ACTA was also a condition set for supporting the accession of Mexico to the TPP.

2. Internet as a “free environment”

In the interview with the Commissioner of the MPTO, the journalist Carmen Aristegui suggested that internet is a “free environment” that should allow the free and unrestricted distribution of ideas content.

The journalist’s position reflect the extended idea about the Internet as a law-lawless environment, as if it were another planet away from the reach of the State.

It is clear that there is a lot of freedom in the Internet, especially freedom to express ideas and opinions; this blog is an example. However, the freedom and rights of any person have limits, and usually the limits are set by the freedom and rights of others.

The above is extremely important in the case of distribution of contents through the Internet, therefore distribution or works. Freedom as a rule in the Internet is not a license to infringe other people’s rights. Freedom of speech should be encouraged, but the freedom to express my own ideas and works is very different from communicating and distributing the ideas and contents of other people when the owner of the rights on such ideas and contents does not agree with their distribution.

The distribution of contents and works in the Internet should be punished when such distribution is against the will of their authors or right-holders, even in the absence of monetary gain. Copying and distributing contents and works of others without authorization or against the explicit prohibition of the right-holders to do so without profit might not be a crime, but it is still against the law. Unfortunately, a lot of people do not understand this and prefer to support a misconception of freedom in the Internet.

Mexico must improve the protection of IP rights, there is no question about it. However, treaties and laws by themselves are not enough to change the reality. Existing laws and regulations in Mexico are fairly good (they could be better), but Mexico has to dramatically improve the enforcement, and in order to do so, courts and administrative authorities need better technical and material capabilities, and also the will. Getting the will to strongly and consistently enforce the existing laws against counterfeiting is difficult when the society continues considering most cases of piracy and product counterfeiting as lesser offenses, if offense at all. Incentives to purchase counterfeited goods are strong, and as long as there is demand for counterfeited products there will be offer, no matter treaties and laws. People need to be educated not only about the importance of protecting and observing IP rights but about the benefits that society and as whole and its members individually obtain from IP. Otherwise, I do not see how to win this fight.