Europeans will take to the streets this weekend in protest at the Anti-Counterfeiting Trade Agreement, an international agreement that has given birth to an ocean full of red herrings.
By Ben Rooney, 9.2.2012, Wall Street Journal That so many have spawned is, say critics, in no small part down to the way in which this most controversial of international agreements was drawn up. If the negotiating parties had set out to stoke the flames of Internet paranoia they could not have done a better job. Accepted there are two things that should never be seen being made in public—laws and sausages—the ACTA process could be a case study of how not to do it. Conducted in secret, with little information shared except a few leaked documents, the ACTA talks were even decried by those who were involved in them. That the Motion Picture Association of America, and the Recording Industry Association of America, had even a tangential role has done nothing to calm fears among opponents that the agreement is little more than a stitch up by rights holders against the interests of a free and open Internet. According to Marietje Schaake, a Dutch member of the European Parliament, the problems with the agreement appeared at the start of the process, when too many things were swept under the ACTA umbrella. “The agreement is seeking to address a number of very different issues of which some are serious problems of public health and public safety, for example trade in fake medicine,” Ms. Schaake said. “But that issue doesn’t compare to the alleged cost to society of online piracy. It seeks to kill 20 birds with one stone. It risks not solving the legitimate concerns but causing incredible collateral damage.” But is the agreement really that bad? No, says Robert Bond, Head of Data Protection and Information Law at London lawyers Speechly Bircham. “The reaction from people who say this is a bad thing, it is not that ACTA is a bad thing, they are reacting to a notion that what they are doing is wrong. “If you say copying other people’s copyright is an OK thing to do, then you are saying that theft is OK. Everyone is very keen on sharing until it is their stuff that is being shared.” He said that there was a lot of misinformation about the agreement. “It does not alter the underlying law. It is an agreement, not an Act. “It is more like a convention of mutual support between signatory countries that they will work to enforce intellectual property rights of individuals or businesses who can prove their rights have been infringed.” This is a point echoed by Patrick van Eecke, professor at University of Antwerp and a partner at DLA Piper, a law firm. “All member states of the EU already have legislation which is very closely related to what is in the last version of ACTA.” If that is the case, that ACTA does not alter the law, why do we need it, ask critics? “ACTA is about raising other IPR [Intellectual Property Rights] standards around the word to be similar to the EU’s. ACTA is a ‘coalition of the willing’ and we hope more countries will be encouraged to join in the future,” said John Clancy, EU Trade spokesman. However critics, and there is no shortage of them, say to suggest that nothing in ACTA changes the law is to miss the point. “It is about inducing countries to change their laws to come in line with ACTA,” says Jérémie Zimmermann, founder of the French Internet lobby group La Quadrature du Net. According to people familiar with the matter, Sweden has said that it will have to update its IP regime to bring it in line with ACTA. Underneath the hysteria (follow #ACTA on Twitter to see) there are some worrying issues, says Mr. van Eecke. “If you look at ACTA with the U.S. initiatives like SOPA (Stop Online Piracy Act ) and PIPA (Protect IP Act), then you notice that, based on the foundation of ACTA, that you could end up with a sort of customs control on the Internet. You could end up with countries trying to impose online borders around their states. Once you accept the principle of border controls online, you can start to do many things. The danger is the Balkanization of the Internet.” Mr. van Eecke was also critical that the agreement sought to freeze the existing IP regime. “It is not very future proof,” he said. “It assumes that the current IP structure is the right one.” As for the agreement, according to the European Commission it requires all 27 member states to sign, as well as the European Parliament. So far five states have yet to sign, while others have suspended their domestic ratification processes. According to a European Commission spokesman, if one country rejects it, the whole edifice falls. With the failure of the U.S. initiatives, as well as the political head of steam that has built up, it is by no means certain the agreement will make it. If it doesn’t, there will be many who rejoice.