Smokescreen on ACTA



“If we don’t include geographical indicators and industrial design in ACTA, what is the whole point to an agreement? These are really red lines for us.” This is what EU Trade Commissioner De Gucht said yesterday in the European Parliament. I doubt that Parma ham or French Champagne are the real motivations behind the a global IP enforcement Treaty despite that they can be used as juicy populist rhetoric in some local regions to justify the utility of the ACTA exercise. Or maybe Mr de Gucht is just trying to show he is being a tough negotiator with his US counterparts in front of a critical European Parliament while these issues might have already been settled at the negotiating table. In any case these issues will probably not delay the conclusion of the negotiations later this year as promised today by the Belgian Presidencyof the EU.

According to EU Commissioner Karel De Gucht the ACTA agreement is about saving EU jobs and innovative industries from unfair competition from piracy and counterfeit products. It is not about new legislation but only about “procedures”, not about IP law but about its enforcement – as if you could draw a clear line between them. Since according the the European Commission there is no contradiction with EU law, there is no need for impact studies on the economic and political consequences of its application! At the same time Fundamental Rights Commissioner Redding has stated that we need a civil rights impact evaluation of ACTA. But the dominant mantra of the EC is like this: “ACTA is a way of showing EU citizens that we shall protect our economy in a cut-throat
world full of piracy that is threatening our innovative industries and weakening our incentive to create.”

De Gucht insists time and again that ACTA will make no “new demands” on Internet Service Providers. Nevertheless, what he surely hides is how the Commission is now liberally interpreting the E-Commerce Directive that speaks of “cooperation of ISPs” in its code of conduct as a benchmark for preserving “safe harbour” from liability. The threat of ACTA pushing dangerous self-regulation that invades privacy and sharing looms.

The Commission representative also was drilled on the difficult question of “commercial scale” and its problematic definition. To avoid
contradicting present EU law where there is no clear definition (as opposed to the “willful commercial intent” of the US) the solution is to leave “commercial scale” totally out of ACTA and to “allow the courts or national laws to decide”. This leads one to ask what the meaning is of an international criminal enforcement regime if the parties cannot even agree as to when criminal enforcement should be applied. It also raises serious human rights concerns about the international legal justification of criminal measures on copyright a la carte, especially in authoritarian countries.

De Gucht skirted around the questions posed on fundamental rights and due process in the proposed “procedures” while insisting that the final agreement would include safeguards and references to the exceptions in international laws in TRIPS.

What he did not mention was the possible negative impact on businesses small and big, of the proposed damages and injunctions proposed in ACTA. More attention is needed on the proposed minimum statutory damages and the injunctions that could have a very chilling effect on innovative companies and trade. The introduction of criminal measures on copyright infringement is sparking rejection across the board both from public and private interests. The majority of the business community is either quite cool or not really interested in ACTA. A serious debate on IP, business costs and innovation is sorely needed to be able to further weaken the hard-line enforcement agenda.

At the end of the day the political and institutional significance of ACTA, both internationally and nationally, can possibly supersede its IP impact in the short term. On an EU policy level ACTA is maybe the flagship of a flotilla of bad enforcement and IT proposals: IPRED on new criminal sanctions, the Gallo Report, a review of the data protection directive, legislation in favour of Internet blocking and new”stakeholder” proposals on illegal downloading.

The good news is that the first week of September might see the European Parliament adopt written declaration 12 – WD12 – if we succeed in getting just a few dozen signatures more to reach a majority of the Members of the Parliament (now around 350 have signed and 370 are needed). This declaration criticizes the opaque process, Internet Server liability, barriers to access to medicine, the impact of criminal measures and the threat to fundamental rights. If we achieve the majority WD 12 will become the official position of the EP and a victory for the NGO community campaigning on ACTA. This declaration does not have concrete legal consequences but it needs to be responded to by the European Commission and will mean another push on the negotiators.