The Final Acts of ACTA

Although the current excitement over the gradual release of the Wikileaks documents is justified in that it concerns what is undoubtedly an important development for the future of the Internet, it has rather overshadowed another area where...

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Although the current excitement over the gradual release of the Wikileaks documents is justified in that it concerns what is undoubtedly an important development for the future of the Internet, it has rather overshadowed another area where crucial decisions are being made: the Anti-Counterfeiting Trade Agreement (ACTA). In fact, ACTA finally seems to be nearing the end of its slow and painful crawl through the secret negotiation process that only recently we have been allowed glimpses of. And the more we learn, the more troublesome it is.

For example, one of the key arguments from the European Commission has been that ACTA does not require changes to European law. This is something that opponents have argued is not true based on the drafts of the agreement that have been leaked or made available. So an intriguing question has been: who is right? This being the world of politics, it turns out that both were right.

The details are to be found in an important post from the Foundation for a Free Information Infrastructure (FFII). It all hinges on something called the "EU acquis", which Wikipedia helpfully explains as follows: "the accumulated legislation, legal acts, court decisions which constitute the body of European Union law." So the claim by the EU's European Commissioner for Trade, Karel de Gucht, has been that ACTA is fully compliant with the EU acquis: that is, no new European law is required.

Here's what FFII has discovered:

Many Members of Parliament trust De Gucht's promises made that ACTA fully complies with the Acquis. Compliance with the Acquis was an argument for MEPs like German Daniel Caspary to support the controversial Treaty.

"I think it is a good thing that the acquis communautaire remains unchanged."

Now Karel De Gucht is forced to admit that there is no criminal Acquis of the European Union existing and member states have to adapt their law when ACTA gets concluded.

Karel De Gucht answered (P-9179/10EN 15 Dec 2010):

"On one area covered by ACTA on which there is no EU acquis, i.e. penal enforcement, it is possible that some Member States may need to adapt domestic legislation to comply with commitments they have undertaken in the negotiation of the ACTA section on penal enforcement. This section was negotiated by the rotating EU Presidency on the behalf of the Member States. However, the Commission wishes to stress that this does not concern EU legislation, since penal enforcement of Intellectual Property Right infringements is an area that is not yet harmonised in the European Union, and is still subject to the domestic legislation of Member States. In other words, there is no "EU acquis" in this area."

The acquis communautaire remains unchanged as there is no European acquis existing.

In other words, the reason that de Gucht and others have been able to claim that the EU acquis is not affected is because in one key area of ACTA – penal sanctions – it doesn't apply; but that means that some countries will need to change their domestic legislation.

Frankly, this is pretty shoddy: it turns out that the cast-iron guarantees offered by senior EU officials were based on an equivocation. What they said was literally true, but it hid more than it revealed. So is there anything we can do when confronted by this kind of political sleight of hand?

As it happens, I think we can draw an important lesson from one of the first Wikileaks cables that touches on ACTA, where we read about Sweden's troubles in managing public perception of the negotiations:

Swedish media and the usual blogger-circles have expressed similar concerns about the on-going ACTA (Anti-Counterfeiting Trade Agreement) negotiations as we have seen in many other countries, mostly focusing on the secrecy and the internet chapter with its reported demands for graduated response systems. As the Swedish Justice Ministry has negotiating for the EU during the second half of this year, this has led to domestic criticism of the government. Media reporting has forced the Swedish Government to go public saying that Sweden will not agree to ACTA provisions requiring revised Swedish laws.

So the media reporting and domestic criticism pushed the Swedish government into stating that ACTA would not require new laws. Whether that's true or not doesn't really concern me here – although in the light of de Gucht's admission, it's a question that needs examining more closely. What I find significant rather is the fact that public and press pressure definitely had an effect on the Swedish government and forced it to react.

This is why despite appearances to the contrary, I believe it is worth continuing to spread the word about ACTA and its abuses, both procedural and legal. It's why it's also worth writing to your MEPs pointing out that the assurances they were given were misleading, and designed to win their agreement by glossing over an important issue they ought to have been fully informed about.

Certainly, if I were an MEP and had found out that I'd been treated in this way, I'd be pretty angry – and rather inclined to vote the whole ACTA package down on the grounds that the European Parliament was not informed as it should have been about the negotiations and implications.

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