Last Parliament Standing: Europe Final Stronghold Of ACTA Critics

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With a recent decision by the Agriculture and Fishery Council of the European Union, the Anti-Counterfeiting Trade Agreement (ACTA) seems to have made a big leap forward. And with recent breakthroughs in other countries, ACTA’s final hurdle may be in the European parliaments.

Late last week, officials who might not have previously heard a lot about the much-debated agreement authorised the European Commission to sign ACTA on behalf of the Union. With this, ACTA reaches its final phase in Europe, which consists of 28 ratification processes, including the one involving the European Parliament (EP).

With ACTA seemingly a done deal in other jurisdictions and the Mexican anti-ACTA stronghold
battered by draconian legal initiatives against IP infringement, many opponents now look for the sometimes recalcitrant EP as a last stronghold against the somewhat misnamed agreement. Not limited to tackling counterfeiting in the strict sense, ACTA includes cross-border enforcement standards against violations of trademarks, copyrights, and to a lesser degree, patents and geographical indications.

ACTA covers civil and criminal law enforcement provisions on the cross-border fight against IP rights violations and for the first time creates a plurilateral standard on enforcement measures in the digital world.

Eight out of 11 negotiating parties (counting the 27 EU member states) signed ACTA on 1 October. Jordan and the United Arab Emirates left the negotiating table early during the negotiations, leaving only Morocco the only non-industrialised country joining what has been criticised as a country club approach by “IP-haves”.

Not Much Left for US Opponents

There is “not much, unfortunately”, that the US opponents of ACTA have been left to do about the agreement after 1 October, said Peter Yu, director of the Intellectual Property Law Center at Drake Law School (US).

What US law experts from various universities have done, he said, was “to encourage the Executive [branch] to seek Congressional action.” He pointed to a letter to President Obama raising material and procedural problems including what they describe as interference with fundamental rights, inconsistencies with international and US legislation and encouraging controversial policies to disconnect people from the internet.

The letter signed by an illustrious list of academics therefore asks for withholding signature until the conclusion of a “meaningful participation process” and changes to the text. But the letter seems to have gone completely unnoticed, given the statement Intellectual Property Watch received from a USTR spokeswoman on the inconsistencies the academics wrote they’ve detected.

“The ACTA is consistent with existing US law,” the spokeswoman said. In several areas, ACTA would enhance the existing international standards for enforcement of intellectual property rights, she added, reiterating the statements made by the USTR on 1 October. The commitment to a strong legal framework, plus commitments to strengthen the international cooperation, would make ACTA “the strongest-ever agreement of its kind.”

Furthermore, ACTA would “provide a platform for the Obama administration to work cooperatively with other governments to continue delivering on its commitment to protect aggressively the intellectual property that is essential to America’s prosperity, and upon which so many well-paying jobs for US workers rely,” she said. The next step in bringing the ACTA into force according to the USTR is the deposit of instruments of ratification, acceptance or approval.

But no timetable or details have been given by the USTR about the next steps.

Once six such ratification documents have been deposited, ACTA comes into force for those how have deposited the ratification documents, according to Article 40. So far Switzerland, Mexico and the EU remain the three ACTA negotiating parites that have not signed, Hirotoshi Ema, head of the Intellectual Property Affairs Division at the Ministry of Foreign Affairs in Japan, confirmed. He said that regard to ratification, Japan is “taking the necessary domestic procedures to conclude ACTA.” But he said he could not comment on the timeline of the ratification processes in other countries.

“One could contemplate a lawsuit to challenge the agreement,” Yu said when asked if ACTA could be legally challenged. “But since ACTA is not a self-executing agreement and no implementing legislation exists, I am unsure how one could mount that challenge.”

Continuing to Question ACTA in Europe

Compared to their US counterparts, the European ACTA opposition still has some hope of influencing or stopping the agreement. At a first short consultation of the Legal Affairs Committee of the European Parliament (JURI) in Brussels on 20 December, members of the Green Party Group and the Liberal Party Group argued that they thought it a wise step to put ACTA before the European Court of Justice (ECJ) first to get it thoroughly checked for consistency with the EU treaties and fundamental rights. Only then should the Parliament vote on ACTA.

Christian Engstroem (Green Party Group member for the Swedish Pirate Party) said two opinions of the European Parliament’s Legal Services – published after a lot of pressure from MEPs like Engstroem yesterday – confirm concerns of ACTA sceptics that the agreement is “borderline when it comes to fundamental rights.”

Engstroem underlined that the caution the Legal Services had used when drafting the statement made a check by the highest EU Court indispensable. For example, in an answer to the JURI, the Legal Service wrote: “It appears that the agreement per se does not impose any obligation on the Union that is manifestly incompatible with fundamental rights. On the contrary, several provisions of ACTA provide for respect of fundamental rights (..).”

Was it proportionate to ask the family of a teenager for a half million euros for a 2 Terabyte hard disk that could contain 540,000 songs? Engstroem asked, referring to an example given by the Legal Service in an earlier opinion to the Committee on International Trade (INTA). The European Parliament has fought over criminalising users, especially teenagers for quite some time when debating the so-far failed second IP Enforcement Directive.

Engstroem yesterday also warned that the Community could lose its “moral high ground” in arguments with governments like the Chinese government when it comes to the request for companies to cooperate with rights holders or government agencies to fight piracy. Such interventions in China had been argued against so far by Europe, Engstroem said.

On the other hand, excluding China to make ACTA safe seems an unreasonable strategy, Austrian Green Party Member Eva Lichtenberger said. She supported Engstroem’s call for clarification of ACTA’s compliance with EU standards, stating: “We have often called to the European Court of Justice for much lesser causes.”

An opinion by the European Court of Justice might delay ACTA in Europe for two years, warned the designated rapporteur Marielle Gallo (EPP). The EP members will have to decide soon if they will push ACTA to the court in Strasbourg, with a motion potentially being tabled by a coalition of party groups.

EU, Swiss Ratification Processes by National Parliaments

ACTA’s not quite a done deal in Europe yet, Ante Wessels, analyst at the Foundation for a Free Information Infrastructure (FFII), told Intellectual Property Watch. “There are 28 ratification processes ongoing in the EU,” Wessels said, besides the one in the EP, and several national parliaments will even get to vote on ACTA.

For example, according to the German Ministry of Justice, Germany will sign ACTA in the beginning of 2012. A decision by the Cabinet on 30 November and the decision by the Fishery Council last week allowed it to move ahead, a spokesman told Intellectual Property Watch. The ratification process according to German law asks for a dedicated law containing the ACTA text to be passed by both the German Parliament and Federal Assembly.

“It’s up to the parliaments to decide if ACTA will enter into force for the EU and Germany,” the spokesperson said, adding that the plan in Germany was to quickly table the necessary law early next year.

Yet the role of the national ratification processes might not be as strong as envisaged by the spokesman. A spokesperson of the EU Council told Intellectual Property Watch that while member states would ratify ACTA according to their national laws, the parts of the agreement that do not touch criminal law issues would fall under the competence of the Community – and henceforth become valid across all member states.

The real option to block ACTA via the national Parliaments was tried by a coalition of several Dutch political parties which proposed to ask for full transparency and openness on all ACTA documents before any decision on ACTA could be taken.

Only after a motion initiated by the Dutch Liberal (D66) party member Kees Verhoeven to stop ACTA failed and the responsible Dutch Minister was free to decide did the Council in Brussels finally move ahead with authorising the Commission to sign, Verhoevens’ office reported. “D66 tried to stop ACTA, at least until all preparatory documents are public or until the Parliament has ratified it, but unsuccessfully,” a member of Verhoevens’ team told Intellectual Property Watch. The failure came when right-wing PVV quit the coalition of the opponents.

“We expect very little discussion, let alone negative reaction, from most parliaments,” Joe McNamee, political analyst for EDRi, the association of European civil rights organisations, told Intellectual Property Watch.

“The high-profile signing authorised by the Council was meant to intimidate parliaments to not get in the way of something that is being portrayed as an unstoppable juggernaut that is being signed by member states and the Council,” McNamee warned. “Certainly we would have wanted that much more attention could be given to the many questions still standing on ACTA before the start of the ratification,” German Green Party Member of Parliament Konstantin von Notz, said.

EDRi will be a strong supporter of the proposal to get an ECJ opinion on ACTA before a decision by the Parliament, discussed yesterday in the JURI. Another complaint pending at the ECJ on ACTA is the one of EP Liberal Group, Dutch D66 MEP Sophia In’t Veld. One and a half years ago, In’t Veld filed a complaint on lack of transparency of ACTA.

With less fanfare, the Swiss Federal Institute of IP (IPI) is preparing for ACTA to be signed by the government. There is no haste to sign, according to the Swiss IP experts who instead seem to trying to be ready for quick ratification once they go for signing. Switzerland is one of three negotiating parties that did not sign the agreement on 1 October.

“We got the impression that the authorities in Switzerland are somehow watching the EU debate unfolding,” said Patrick Durisch, health programme coordinator at the Swiss NGO Berne Declaration. Durisch expects that, “When the EU signs and ratifies, we will follow”. The Berne Declaration in the meantime has asked Switzerland to not sign or to exclude pharmaceuticals completely from ACTA.

The Spirit of ACTA – Mexican Developments

“There is still a chance that ACTA might live in Mexico,” said Leon Felipe Sánchez, professor at the Legal Department of the Universidad Natcional Autónoma de México and partner at Fulton and Fulton SC in Mexico City. With upcoming elections and a potential new government in office later in 2012 there might still be enough time to go back to the Senate and get another, this time ACTA-approving vote, he said, despite the opposition. The current Mexican Congress last summer rejected ACTA after an extensive consultation process.

Sánchez also sees several new initiatives by some of the very anti-ACTA advocates that aim at reforming Mexican IP law. The most prominent case of a convert currently reported about in Mexican blogs is Senator Frederico Döring Casar from the National Action Party (PAN), who started a legislative initiative that according to reports from Mexico would install a notification system managed by the Mexican Institute of Intellectual Property (IMPI), based on allegations of infringement from rights holders. The proposed bill will be further discussed in January.

With these and a number of similar reforms, the Mexican legislature might go ahead with implementing IP enforcement provisions and making ACTA practically irrelevant – or potentially easy to adopt later as an agreement that then would not change then existing Mexican law. Who could be against it then?

Monika Ermert may be reached at info@ip-watch.ch.

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