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ACTA and the Fight for Internet Freedom

A new international treaty, Acta, threatens to shift the balance of copyright law in favor of the creative industries. Two MEP's discuss the potential consequences and the role of the EU in negotiations surrounding the treaty.

by Guillaume Ledit On October 25, 2011

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A new international treaty is threatening to fundamentally transform copyright law. On October 1 the United States, Australia, Canada, Japan, South Korea, New Zealand, Singapore and Morocco signed the Anti-Counterfeiting Trade Agreement (Acta). This trade agreement is intended to fight against counterfeiting on a global scale by strengthening the laws relating to intellectual property within the signatory states. But Acta is not without controversy and the questions posed by the treaty are numerous: it’s hardline approach to copyright; the desire of industrialised nations to secure an historic monopoly; responses to changes in Internet usage; the intensive lobbying being carried out by the creative industries as well as the draconian measures it would introduce.

The ratification of the agreement by the European Union will take time, and will require a vote by national parliaments as well as the European Parliament. Several dates are circulating, but it seems likely that these votes will take place in early 2012. All votes will have to take place before May 1, 2013.

OWNI contacted two MEP’s publicly opposed to the treaty, Marietje Schaake (Group of the Alliance of Liberals and Democrats for Europe) and Catherine Trautmann (Group of the Progressive Alliance of Socialists and Democrats in the European Parliament).

Acta, a threat to freedom?

A member of both the Foreign Affairs and International Trade committees, Marietje Schaake has worked extensively on the treaty:

Having carefully studied the impact on the digital agenda of this supposed trade treaty, I have come to the conclusion that Acta could have a negative impact on innovation and on the fundamental rights of European citizens. It’s not just the penalties that I have a problem with, it’s also the strengthening of the powers of industry with regards to innovation services and public-private partnerships.

She believes websites or service providers “may need to set up automatic systems to monitor the behavior of their users”, resulting in a form of “privatisation of the law.”

Catherine Trautmann points out that Acta is akin to a “second generation” Hadopi:

In its original form (the final version has been amended) the underlying idea of ​​Acta in terms of the Internet, rather than set up a complex and impractical global Hadopi type system, seems instead to be to put pressure directly on the intermediaries (ISP’s, hosting companies) while chipping away at the principle of “safe harbor” (the presumption of non-liability of technical intermediaries regarding the content they carry).

The European Parliament a last resort?

While Marietje Schaake says that “a single vote against Acta at the member state level could block the treaty for the whole of Europe,” she also explains that “the European Parliament and the Council will vote on Acta within a few months. It is impossible to predict the outcome of the vote. The lobbying going on in favor of the treaty is just as fierce as the lobbying against it, which shows how important it is.”

Catherine Trautmann says:

During the negotiations the European Commission has addressed all matters that are within the legal scope of the EU. But it’s the member states, via the rotating presidency of the Council, who negotiated everything that is not related to a “trade” agreement, especially the criminal aspect, which raises questions.

However, the former mayor of Strasbourg explains that the Parliament’s vote is unpredictable: “Our assembly expressed its thoughts repeatedly throughout the agenda, not always in unison by the way, but always in a very balanced fashion. It’s hard to say how this will translate into yes or no votes!”

When asked whether an agreement like Acta threatens the acquis communautaire of the EU, Marietje Schaake states that “extensive research indicates that Acta is not in compliance with it. The criminal aspects are certainly outside the purview of any European regulation.” She continues:

In collating the various aspects of the treaty, we can see that Acta constitutes another tool that extends the rights of industry, and thus significantly disrupts the delicate balance of copyright.

Catherine Trautmann emphasises the “considerable debate among experts” on the subject, notably regarding “the criminal aspect of the agreement”:

In fact, it’s possible that the text “taken as a whole” might comply (with the acquis communautaire), but that’s not the issue. We must ask ourselves the purpose of an agreement wherein the main countries targeted (the “counterfeiters”) are not signed up (and have no intention of signing up). In addition, do we really want to give a signal emphasising a repressive approach that has proven its inefficiency and injustice in the last 10 years?

“The Acta treaty is not the solution”

If Acta is not responsive to the major challenges posed by the evolution of intellectual property, alternative solutions exist. Marietje Schaake insists on the need for a “renewed confidence between the two parties” because “consumers are losing confidence in the creative industry”.

The Acta treaty is not the solution. It was negotiated in secret with the key players in the industrial world around the table. Parliaments and the democratic process have largely been bypassed. As a consequence citizens will continue to lose confidence in the creative industry. The result could be new technological methods of circumventing the provisions of the Acta treaty, instead of efforts to create a viable European digital market in which legal tenders can be negotiated, thus eliminating the need for a draconian legal framework.

Catherine Trautmann points out that “intellectual property is a compromise between an inventor or author and society. This compromise must strike a balance between innovation and the free flow of ideas.” She also underlines the idea that “repressive measures targeting Internet users are not a response to this problem. In general we need to avoid technical measures that are fueling an ‘arms race’ in anonymization and encryption, one which could have very damaging side effects.”

Her conclusion is clear:

Ideally we would envision a reform of copyright law in step with the reality of Internet use, coupled with a reflection on commercial (legal tenders) or fiscal (global licensing) mechanisms so as to ensure a decent income for authors, within a renewed framework (a “chain of value” which would be more favorable to them). More and more people are in favor of this, even within the World Intellectual Property Organization (WIPO). But it’s a difficult job, involving a multitude of sectors, which will require a strong political will to get started. This last requirement still seems absent across Europe.


Photo Credits: Flickr CC European Parliament

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