ACTA rejected in the European Parliament

A victory yesterday for the Parliament and the demonstrators across the continent who have been keeping up the pressure against the Anti-Counterfeit Trade Agreement: the treaty was rejected by 478 votes to 39, with 165 abstentions. A conservative amendment to send the treaty back to committee and wait for the ECJ judgment on the treaty's compatibility with EU law was also rejected leading up to the vote, resulting in right-wing MEPs abstaining from the vote - supporting the treaty, but afraid to nail their colours to the mast in the face of public controversy. Though 22 Member States have ratified the treaty, the approval of the EP was needed before it would come into force anywhere in the EU.

The public controversy and campaign against the treaty is now the model for using the Parliament to make the EU more democratically accountable. It was not just an online campaign, but included demonstrations all over Europe, and political pressure building through the national parliaments. It helps that the issue was one of online politics, with a constituency that would probably find it the easiest to mobilise across borders. Will we see other such European civil society campaigns? Digital and civil rights related issues will probably remain the most natural campaign issues. When it comes to the digital marketplace and the internal market, as well as crime and child protection on the internet, the EU is a main actor given that these technological developments have appeared and grown as parts of the economy during the internal market's existence, and since purely national regulations don't make quite as much sense as an approach here.

Direct campaigns on this scale are quite difficult to create and sustain, and generally seem to be best directed towards the rejection of a draft law or treaty, and don't often happen in many states. So will this help stimulate the opening up of the European Parliament? So far many of the Parliament's stands have centred mainly on its place in the institutional triangle with the Commission and Council. While there was some institutional self-interest in this case (the EP wants to be more involved in treaty negotiations), the political groups took their positions to garner public support. It was perhaps also an ideological battle since the right in the Parliament was broadly in favour of ACTA or an ACTA-like agreement, while the liberal and left wing groups were more ready to oppose it. Environmental and economic issues are also important and high on the public's agenda, but it is harder to build a campaign for such complicated policy areas for a positive change rather than rejecting proposals. Hopefully the ACTA case will spur political and electoral innovation by the Europarties and parliamentary groups by demonstrating that there is a politically aware public to tap into.

ACTA itself may be dead, but governments are likely to continue to try to push further and further on enforcement mechanisms for copyright without a reappraisal of copyright in a digital world. It's a very important debate, and it would truly be impressive if the European Parliament tried to take a lead in the debate on how to adapt copyright so creativity in the economy and the arts is encouraged and promoted, yet prevent the misuse of copyright in the courts and in society in a way that actually dampens creativity and could in some cases endangers free speech if badly enforced. It's not enough to halt the mindless and crude enforcement of a flawed system; we need to be proactive in adapting.

If the European Parliament is smart, it can capitalise on this and serve as a platform for an important 21st Century debate. And if they don't, we should force them: we've proven we can have an impact on the European stage.

ACTA referred to the European Court of Justice

The Commission has decided to refer the Anti-Counterfeiting Trade Agreement to the ECJ to assess its compatibility with EU law, including the fundamental rights guaranteed under EU law. Commissioner Karel de Gucht said:

"We are planning to ask Europe’s highest court to assess whether ACTA is incompatible - in any way - with the EU's fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property.

As you are no doubt aware, within the EU institutional process, the European Commission has already passed ACTA to national governments for ratification. The Council has adopted ACTA unanimously in December and authorised Member States to sign it. The Commission has also passed on ACTA to the European Parliament for debate and a future vote.

That said, I believe the European Commission has a responsibility to provide our parliamentary representatives and the public at large with the most detailed and accurate information available. So, a referral will allow for Europe’s top court to independently clarify the legality of this agreement."

However he goes on to say:

"As I have explained before the European Parliament on several occasions, ACTA is an agreement that aims to raise global standards of enforcement of intellectual property rights. These very standards are already enshrined in European law. What counts for us is getting other countries to adopt them so that European companies can defend themselves against blatant rip-offs of their products and works when they do business around the world.

This means that ACTA will not change anything in the European Union, but will matter for the European Union.

[...]

So let me be clear: ACTA will change nothing about how we use the internet and social websites today – since it does not introduce any new rules. ACTA only helps to enforce what is already law today.

ACTA will not censor websites or shut them down; ACTA will not hinder freedom of the internet or freedom of speech.

Let's cut through this fog of uncertainty and put ACTA in the spotlight of our highest independent judicial authority: the European Court of Justice.

This clarity should help support a calm, reasoned, open and democratic discussion on ACTA - whether at the national or at the European level. We will also be in contact with the other European institutions to explain this step and why it would make sense that they make the same move."

It seems odd to subject ACTA to judicial review when its provisions are open to national interpretation in places, while not reviewing the current IPR regime in the EU. After all, if the current regime has already largely introduced the ACTA system domestically, would a negative judgment by the Court result in a major investigation into the existing laws...?

This judicial review is mainly aimed at providing a visible counter to the accusations leveled at the Agreement by the European public. Because of the secret nature of the negotiations and the timing of the SOPA and PIPA legislative battles in the US, the Commission hasn't been able to effectively put its side of the story across, so it's relying on a court judgment to solve this problem. Given the vague nature of some of the provisions and the false accusations that have been flying around, the ECJ's judgment will be able to refute some of these. However this avoids the issue of whether we aren't balancing rights correctly through our intellectual property rights regime. The criticisms of the Treaty aren't just based on fundamental rights.

This balance has been pushed for a long time simply in the direction of ever stronger enforcement in a way that doesn't take into account the the issues raised by the internet age, particularly via the new focus on indirect "economic advantage" as opposed to commercial advantage. There are many uses of media now that are different from both their commercial use and the use of physical goods - from classic commercial activities which do need to be protected. We need to think more about the purpose of IPR and how far we should restrict "indirect economic advantage"; whether or not it should be punished at the same level as commercial advantages, or if different approaches should be used to reflect the social and economic value and impact of the relevant activity. And what about setting damages at the level of the retail price rather than the more proportionate level of the loss suffered?

This isn't a simple, headline grabbing fight over fundamental rights (although it raises some questions over how we want to balance them in practice), but also over the usefulness, proportionality and effectiveness of our IPR laws. I hope throwing out some of the wilder claims about ACTA does not puncture a necessary debate - will the EP measure up?

The Anti-Counterfeiting Trade Agreement

I once had a work experience were I had to read through several contracts selling and assigning the right to turn a book into a TV programme and then give a presentation on who owned/did/does what. I'd only done a year at university and hadn't covered contract law or intellectual property law, so I was given a few textbooks on contract law and on copyright. As well as being one of the most interesting work experiences I ever did, it's also the only time I did anything to do with intellectual property law - while I was interested to read ACTA (PDF), I was a bit wary since I don't have the time to read into all the surrounding legislation and the debate on IPR. I do agree with this article over at The Atlantic, though: while some of the claims against ACTA might be a bit overblown, the trend in international IPR law is worryingly focused on the enforcement side, and ratcheting up enforcement standards without ever adapting to the issues brought up by our digital age. (A major debate is on whether copyrights do in fact encourage innovation and investment, or if the current laws actually detract from such innovation).

ACTA has rightly caused a huge reaction from the public, and the Party of European Socialists has come out attacking the treaty( PDF):

"The Party of European Socialists considers the Anti-Counterfeiting Trade Agreement (ACTA) to be fundamentally flawed in both content and process. There is a severe imbalance between the rights attributed to the users, service providers and rights holders.

The agreement, which is to be voted on by the European Parliament before summer 2012 and ratified by National Parliaments, is flawed in content for the following reasons; it gives undue power of oversight to internet providers; it infringes the privacy of internet users; and it will curtail developing countries access to generic medicines. It is flawed in process because of the secret manner in which the accord was agreed upon, and because of the significantly reduced time afforded to the European Parliament to scrutinise the final draft."

I haven't been able to find the positions of any other Europarties yet, but if you know them, let me know in the comments.

ACTA itself seems to raise a few questions over due process and the role of Internet Service Providers in policing IPR (which has serious implications for privacy and data protection - though it should be stressed that the actual role of ISPs would be decided by domestic legislation and ACTA does not require ISPs to take on a policing role). The EU has signed up to ACTA along with its Member States, but it has yet to be ratified and the European Parliament will make its decision this summer. The explanatory memorandum to the agreement makes clear that the Commission considers the agreement as adding noting new to current EU law on IPR, while leaving any additional obligations for judicial enforcement to be carried out by Member States as parties to the treaty. This doesn't strike me as a reason to be reassured by ACTA: if our legislation already goes further than ACTA, then where does that leave all our talk on this side of the Atlantic about being more enlightened about IPR and the internet? We still may have the safe harbour provisions that SOPA attacked, but ACTA clearly underlines that our approach is guided by a similar philosophy rather than being subjected to a serious debate about how the internet and digital media have changed the environment for IPR and how we should adapt (not to mention the price we might pay in terms of privacy and free speech to enforce these ever stricter laws).

So while not every evil assigned to ACTA finds backing in its vague provisions, it is another important step in the development of our IPR laws. We should take this opportunity to ask our MPs and MEPs to debate not just ACTA, but our approach to IPR in general. It's more than just this agreement.

You can sign the petition against ACTA here.

Also, Grahnlaw has been providing good coverage of this issue (see here, here and here for examples).