Why ACTA must fail

The controversial Anti-Counterfeit Trade Agreement is one step closer to being canned, after the European Parliament’s rapporteur recommended that MEPs vote against ratification. Jason Hesse explains why ACTA must fail.

Following an eventful week in Brussels, the Anti-Counterfeit Trade Agreement (ACTA) is now one step closer to being dumped by MEPs. Last Thursday, the European Parliament’s rapporteur on ACTA, David Martin MEP, confirmed that he would recommend that his colleagues vote against the contentious trade agreement.

The anti-counterfeit and copyright-boosting treaty could be “dead in the water”, Martin said: ”It raises more fears than hopes. What it delivers in terms of important intellectual property rights is diminished by potential threats to civil liberties and internet freedom.”

Though already signed by 22 EU member states – including the UK – ACTA has been controversial from the start. The basis of the treaty was first developed in 2006, in talks between Japan and the US, with the EU and Switzerland joining the table in 2007. Official negotiations between countries began in 2008, with more countries joining the talks.

ACTA’s goal is to create new legal standards of intellectual property enforcement. This includes increasing international cooperation; for example, increasing the amount of information shared between countries.

But opponents of ACTA criticise the trade agreement’s undemocratic processes and expansionary rules, as the parliament’s David Martin explains: “The atmosphere was wrong, with negotiations done behind closed doors, without any real information coming out afterwards. What has emerged is a thin text with insufficient detail, which appears to put duties on internet service providers to act as internet policemen.”

Indeed, the treaty would “remove legal safeguards that protect internet service providers from liability for the actions of their subscribers”. Or, in other words, force ISPs to police their users.

The trade agreement also links counterfeiting physical goods with digital copyright infringement – similar to the US’s failed SOPA and PIPA proposals earlier this year. Though, as TechDirt’s Mike Masnick notes, this is a false premise to go on:

If you include physical counterfeiting, even though it’s a small issue, you can talk about fake drugs and military equipment that kill people – so you can create a moral panic. You can then use the (questionable) large numbers about digital copyright infringement, and then lump those two things together, so you can claim both ‘big and a danger to health’.

Without counterfeiting, the ‘danger’ part is missing. Without copyright, the ‘big’ part is missing. The fact that these two are extremely different issues with extremely different possible solutions becomes a minor fact that gets left on the side of the road.

Furthermore, as it is being negotiated as a trade agreement, ACTA has not been subject to as much democratic scrutiny as regular legislation would have been. This is a law that has been negotiated in secret and is now being pushed through the back door, and it is shameful that more than 30 countries have already signed up to it.

ACTA has lacked clarity from the first day. Proceedings and negotiations were held in secret, away from public scrutiny. Participants were forced to sign strong non-disclosure agreements before being let in the room, and even established trade bodies, such as the World Trade Organisation and the World Intellectual Property Organisation, were left out of talks. The public only became aware of ACTA because documents were anonymously posted on Wikileaks in 2007, and, even then, private negotiations continued.

The good news is that the European Parliament is – finally – taking a stand. Though 22 of the 27 EU countries have signed the treaty, the European Parliament will need to ratify the treaty before it comes into force. With the parliament’s rapporteur advising MEPs to vote against ratification, it is unlikely that the treaty will pass.

David Martin is not the first rapporteur to speak out against ACTA. Kader Arif, the initial MEP responsible for the trade agreement, resigned from his role in January to protest and denounce the lack of transparency in the ACTA negotiations.

“I want to denounce as the greatest of all the process the fled to the signing of this agreement: no association of civil society, lack of transparency from the beginning of negotiations and successive postponements of the signing of the text without any explanation begin given. I will not participate in this charade,” Arif said upon resigning.

The Socialist Group, the second-largest political force in the chamber, as well as the Greens today, declared that they would vote against ACTA. Their votes alone are not enough to reject it – this depends on the European People’s Party and the Liberals, the first and third-largest groups. But if any one of these groups takes an official position against ACTA, then the treaty is dead in the water.

ACTA is fundamentally against internet users’ interests: it restricts freedom of speech and threatens human rights. This is not about defending piracy and counterfeiting – we subscribe to defending intellectual property – but rather is about finding a transparent and democratic way of addressing the issue, where internet users’ freedom will not be restricted.

Protecting intellectual property rights internationally is hugely important, but it should not be done at the expense of internet freedom, behind closed doors. Legislators across the world need to rip this trade agreement up and start an open debate about digital security and protecting intellectual property.

The final nail in ACTA’s coffin has not yet been hit. But we’re nearly there.