When I started writing these ACTA updates three weeks ago, things looked pretty grim. There was every possibility that the European Commission would simply railroad the treaty through the European Parliament, and that national governments would meekly ratify it. Since then, of course, several countries have flat-out refused to sign up yet, and there have been massive street demonstrations across Europe (but not in the UK, to our eternal shame.)
The other sign that something has happened is the sudden desire of the European Commission to sell ACTA to us – something it somehow forgot to do in the preceding four years of negotiations. I've already discussed a number of documents it has produced in previous updates, but today saw another landmark statement – and shift in the EC's position.
After refusing point-blank to countenance the idea, the Commission has now agreed to refer ACTA to the European Court of Justice for an opinion on its compatibility with EU law. Here's what the commissioner in charge of ACTA, Karel de Gucht, said this morning:
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.
That's seems to be good news, although you can't help feeling they should have done this before signing the thing. But whether it is really good news rather depends how the question or questions are phrased. However, irrespective of that, de Gucht's statement is important because part of it shows that the Commission is finding it almost impossible to explain just why we need ACTA at all.
Here's the key passage:
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.
Intellectual property is Europe's main raw material, but the problem is that we currently struggle to protect it outside the European Union. This hurts our companies, destroys jobs and harms our economies. This is where ACTA will change something for all of us – as it will help protect jobs that are currently lost because counterfeited and pirated goods worth 200 billion Euros are floating around on the world markets.
In Update V, I quoted from an EC document on ACTA that also explained at length that it was all about tackling counterfeit goods:
Europe's economy can only remain competitive if it can rely on innovation, creativity, quality, and brand exclusivity. These are some of our main comparative advantages on the world market, and they are all protected by Intellectual Property Rights. As Europe is losing billions of Euros annually through counterfeit goods flooding our markets, protecting Intellectual Property Rights means protecting jobs in the EU. It also means consumer safety and secure products.
But note how the justification there was all about protecting jobs by fighting "counterfeit goods flooding our markets": that is, ACTA was about what happened inside Europe. Now compare that with de Gucht's statement today: "This is where ACTA will change something for all of us - as it will help protect jobs that are currently lost because counterfeited and pirated goods worth 200 billion Euros are floating around on the world markets." Notice that ACTA is now about tackling counterfeited EU goods outside the EU.
This is a huge change, because it means that the Commission implicitly recognises that its argument about fighting counterfeits in Europe with ACTA doesn't hold up, for the factual reasons I discussed in Update V. But let's explore the new tack that it is taking.
The claim is that ACTA "will help protect jobs that are currently lost because counterfeited and pirated goods worth 200 billion Euros are floating around on the world market." But it's not the world market that counts, only that part of it in the signatories of ACTA (since ACTA doesn't apply elsewhere.) So the question is whether ACTA will make a difference to the ability of EU companies to tackle fake versions of their goods in those ACTA countries.
Now, given that the main signatories of ACTA outside the EU are Australia, Canada, Japan, New Zealand, South Korea, Switzerland and the US, all of which have stringent laws against counterfeits already, that means that the only places where ACTA will have much effect are Mexico and Morocco, which may be obliged to tighten up their anti-counterfeiting laws. But that will clearly have only a minimal effect on the level of fake EU goods worldwide, which means that it will also be no help in saving EU jobs either.
What this means is that either way – whether fighting counterfeit goods inside the EU, or outside it – ACTA is pointless, despite de Gucht's claims to the contrary. It doesn't offer any benefit whatsoever to the EU, its companies or public, but threatens to introduce plenty of problems for the future thanks to its extremely vague but one-sided framing.
This belated move to involve the ECJ looks like an attempt by an increasingly-desperate Commission to distract attention from the fact that ACTA serves no purpose, and to turn the ECJ's decision into a proxy vote on whether the European Parliament should ratify it. Whatever the ECJ decides about ACTA's compatibility, the European Parliament should simply reject it.