As the European Commission stalls and demonstrators across Europe prepare for another day of protest this Saturday, Swedish Pirate Party MEP Christian Engström makes the case against ACTA.
It is true that some claims made by some opponents to ACTA have been exaggerated, which is perhaps natural, but is still unfortunate. There is no need to paint ACTA as being worse than it actually is. There are enough things about ACTA to raise concern anyway. Here are some of them:
This is the main argument of the proponents of ACTA. In the US they say that ACTA will change no US laws, and in the EU they say that it will not change any EU laws. Yet, they say that signing ACTA is crucial. They have spent four years negotiating ACTA behind closed doors, and have used every trick in the book to keep both civil society and elected parliamentarians from being able to influence the outcome. But now that they are ready, they claim that what they have achieved is an agreement that changes nothing, but which must be signed anyway. This makes no sense.
If it were true that ACTA changes nothing, this would in itself be a sufficient argument to reject the treaty outright. Why bother pushing it through, despite all the public opposition, if it achieves nothing? The very least we can demand to even consider giving consent to the agreement is that its proponents come clear and explain what things they think it will change (for the better, in their opinion). Because of course ACTA will change things.
Copyright and copyright enforcement are hot political issues that are coming under increasing debate, both in the EU and on the national level. The Commission has already announced a number of upcoming dossiers, including an evaluation and revision of the Intellectual Property Rights Directive IPRED later this year.
Even if ACTA were to change nothing in the existing legislation, it still ties the hands of the European Parliament so that any future changes to copyright enforcement legislation can go in one direction only, regardless of whether the evaluation of the current policies would show that they are not working, and we need to find a better way. The national parliaments in the member states will be restricted in the same way by ACTA.
Considering how controversial the copyright policy area is, and contrasting this with the lack of transparency and parliamentary consultation that has surrounded the ACTA negotiations from the start, allowing ACTA to tie the hands of elected parliaments in this manner is not acceptable.
China, Russia, India, and Brazil are the biggest manufacturers of counterfeit goods in the world. None of them are parties to ACTA, and they have all publicly declared that they never will be, since they consider ACTA too extreme.
Even the Pirate Party agrees that commercial goods counterfeiting is a bad thing, and that we should combat it. The idea to have an international agreement on goods counterfeiting with the BRIC countries makes sense. The idea to have one without them does not.
The ACTA agreement may well turn out to be harmful to the legitimate fight against counterfeit goods in the market, if it blocks the possibility of reaching an more limited agreement on only goods counterfeiting with the BRIC countries.
When considering what ACTA might or might not mean, it is important to remember that ACTA did not suddenly appear out of the blue in a political vacuum. For the last 15 or 20 years we have seen a number of initiatives related to copyright enforcement: WCT, DMCA, EUCD, IPRED, the Data Retention Directive, Hadopi, the Digital Economy Act, SOPA, PIPA, and now ACTA. They have all gone in one direction only: expanded rights for copyright holders and stricter enforcement.
It is true that we can debate how big or small a step ACTA is, but that it is yet another step in the same direction is irrefutable. If it goes through, the copyright lobby will exert all its power to have every ambiguity in it interpreted to their advantage, just as they have with every previous new law or agreement in this area. This is something we need to keep in mind when discussing how to interpret various details in the treaty.
It is true that ACTA does not directly demand that Internet service providers should take action against accused file sharers.
Instead, ACTA talks about promoting “cooperation” between Internet service providers and rights holders. In an earlier draft there was a footnote saying that “three-strikes” was an example such cooperation, but when the draft leaked and there were public protests, the explanatory footnote was removed. The agreement text still talks about its desire to promote cooperation between Internet service providers and rights holders, though, and no suggestion has been made as to what it might mean if not “three-strikes”.
The language of this provision in ACTA has been made less clear, but it still encourages the idea of shutting people off the Internet.
Article 9.1 of ACTA says that damages should be measured by the suggested retail price. This may perhaps sound harmless, but it can lead to completely absurd consequences.
A two-terabyte hard disk can hold about half a million songs. Calculated at the market price of one euro per song, the damages for having a 2 TB disk full of music would be half a million euro. This is in no way an extreme example, it is something that a lot of teenagers have. You can argue that they shouldn’t, or you can wonder why, but this does not change the fact that a lot of teenagers do. According to ACTA, their family could risk having to pay half a million euro in damages.
There have been a number of cases in the US where file sharers have been ordered by the courts to pay astronomical damages, but this is not something we should import to Europe.
The issue of ACTA’s impact on access to medicines in third world countries is very complex, and I am not an expert on it. All I know is that organizations like Oxfam and Médecins Sans Frontières, who deal with this issue in practice, are concerned that ACTA will harm access to legal generic drugs in poor countries.
We know that there have been problems with perfectly legal shipments of generic drugs being seized and destroyed by customs already under present rules, and if Oxfam and MSF say that ACTA could make matters worse, that’s good (bad) enough for me.
Is ACTA compatible with fundamental rights in Europe? Different legal experts seem to give different answers.
The legal opinion that JURI got from the Parliament’s legal service said, in very guarded language that “It appears that the Agreement per se does not impose any obligation on the Union that is manifestly incompatible with fundamental rights.” (emphasis added)
The Assessment of ACTA for the INTA Committee in June 2011 seemed to be of the opposite opinion and said that “unconditional consent would be an inappropriate response from the European Parliament given the issues that have been identified with ACTA at it stands.”
The Study on ACTA and fundamental rights by Professor Douwe Korff (London) and Professor Ian Brown (Oxford) list a number of concerns with ACTA, including some mentioned above, and concludes that “This makes the entire Agreement, in our opinion, incompatible with fundamental European human rights instruments and -standards.”
In the absence of an authoritative ruling by the European Court of Justice, all we can say is that at best, ACTA is a borderline case.
It is possible that the European Court of Justice could provide guidance on how to implement ACTA to get it within European fundamental rights, but that leaves the question of what will happen in other countries when ACTA is implemented there. In an number of places in ACTA it says that this or that provision does not have to be implemented if it contradicts legislation on fundamental rights.
In countries outside the EU, which do not have the European fundamental rights as part of the constitution, there is a big risk that ACTA’s provisions will be implemented in a way that would infringe fundamental rights as defined in Europe. If this is the case, for the EU to ratify ACTA would be in breach of the obligation in the Treaties to promote the spread of fundamental rights in the rest of the world.