News

Could the EU Walk Away From ACTA?

Over the past week, I have had several posts on ACTA in the wake of the most recent leaked text, including a scorecard on the major remaining areas of disagreement, one assessing the growing rift between the U.S. and E.U., Canadian positions on ACTA, the changed U.S. position on anti-circumvention rules, and a look at geographical indications, a key issue for the EU.  On top of these posts, there is additional information disclosed last weekend that Luc Devigne, the lead EU negotiator is taking on new responsibilities (though the EU says he will continue on ACTA).

Putting the pieces together, I think it may be worth considering whether the EU is prepared to walk away from ACTA altogether, leaving the U.S. with a far smaller agreement that cannot credibly claim to set a standard for the G8 or developed world.

Why raise this possibility?

1.    The remarkable comments from European Commissioner Karel de Gucht sent the unmistakable signal that the EU is prepared to walk away.  De Gucht told the European Parliament that without the inclusion of geographical indication and industrial designs, the EU would have to reconsider the benefits of the treaty. Moreover, he pointed the finger at the U.S. for maintaining secrecy on the treaty (which leaked a day later).  The USTR acknowledged that the negotiating round did not meet its expectations.  While de Gucht’s comments were taken by many as posturing for the negotiations, what if they reflect a sincerely held view that an ACTA without a broad scope of intellectual property is not worth the trouble?

2.   De Gucht also poured cold water on the next round of negotiations, assuring the European Parliament that he did not expect significant new developments until September.  While there were initial rumours of a Washington meeting next week, it now seems clear that will not happen. In fact, hope for a meeting in August in Washington may also be difficult to pull off given the conflict with European vacations that month.  There may be urgency on the U.S. side but it is not matched by the EU.

3.   Internal EU pressure against ACTA continues to mount.  Over the past week, two Dutch ministers raised transparency concerns with ACTA and the EU Article 29 Working Party expressed concerns with the privacy implications of the draft agreement.  Moreover, the European Parliament is inching closer toward enough signatories to pass Written Declaration 12, which would send yet another strong signal about its concerns with ACTA, its impact, and the lack of transparency.

4.    Tracing the changing text from the last three rounds (Guadalajara, Wellington, Lucerne) it is clear that the U.S. is doing most of the caving in an effort to rally support for the treaty.  The dropping of its three strikes language, the inclusion of de minimis, and the changes to the Internet chapter all reflect changes to language initially proposed by the U.S.

5.    Most importantly, there remains the seemingly intractable problem of the scope of ACTA. The EU looks to its robust geographical indications system and sees the area it most wants to protect.  The U.S., which is undoubtedly more concerned with protecting music and movies, simply can’t agree to the EU demands (which cover over a dozen provisions) without making changes to its domestic laws. That step would run counter to prior commitments that ACTA would not change domestic U.S. law and would require Congressional approval.  The inverse situation arises in the context of anti-camcording rules.  The U.S. looks at the anti-camcording and sees the area it most wants to protect.  The EU sees an issue that would require going beyond current law that would require national approvals.

Put all of this together and the U.S. may face the choice of a major fight to get ACTA approved in Congress (with the EU on board) or the possibility of ACTA without the EU.  For the EU, it faces the prospect of an agreement that does not meet its major needs and for which there is mounting internal dissension or the possibility of walking away.  While there is no reason to think a breakdown of the talks is imminent – a deal is presumably still more likely than not – the possibility of an ACTA without the EU must be considered as an increasingly desperate USTR looks to save face on an ACTA largely limited to countries with which it already has a trade agreement in place.

14 Comments

  1. Woo
    Walk. a. way.
    Walk. a. way.
    Walk. a. way.

    Goooo EU! Their demands are horrible, but the result of them could be beneficial if they walk away because of em !

  2. Anarchist Philanthropist says:

    It would be a step in the right direction, forcing the american rat shack of a gov’t to open they’re eyes and maybe see they can’t police the world.

  3. So much for the “coalition of the willing” 😉
    Sometimes the best way to deal with a bully is to just walk away.

  4. Hephaestus says:

    When it goes open that is when …
    “While there is no reason to think a breakdown of the talks is imminent”

    It will become imminent when this becomes an open discussion. Currently with just one official release and two unofficial leaks they are already beginning to fall apart. The media industry is a very small part of the worlds economy. When the other 95% of the worlds industries begin getting involed, and start seeing how ACTA will affect them. That is when this is destined to failure.

  5. Another piece?
    You could also add The Times published interview with José Manuel Barroso, the President of the European Commission stating that “The US EU relationship is not working” and note the timing of the interview.
    http://www.eurotrib.com/story/2010/7/15/9321/80380

  6. Ugg….
    Trust me, we don’t want this in the States either. Most haven’t even heard of this judging by the deer-in-headlights look when I ask what others think about it. We’re willing to admit that our government has completely run amok though! HELP!

  7. Silver Fang says:

    Death to ACTA
    The only people who support ACTA are the rich entertainment industry and the politicians whose pockets they line. To the rest of us, it will be just one more burden atop many inflicted on us by the wealthy elites.

  8. Todd Ouellette says:

    youtube.com/effisafraud
    youtube.com/effisafraud

    EFF is full of $^%&

  9. EU consistency
    > Goooo EU! Their demands are horrible, but the result of them could be beneficial if they walk away because of em !

    The EU’s demands are not horrible; instead, they are mostly consistent. There should be no distiction between infringing a trademark and copyright with patent etc. as far as illegal trade is relevant. An illegal counterfeit product is an illegal counterfeit product. Why should the *IAA get special treatment at the expense of the rest of economy? Their voice is the loudest and most obnoxious, but they should not get any special treatment above any other industry. Moreover, it is absurd to police at the importers’ expense only rather than the exporters’ or both.

    The *IAA must learn they’re not the rulers of the economy, and the rest of the industries will not tolerate the *IAA’s meddling and subversion of laws. Go and sue kiddies and grannies for all I care.

    As for Stephen Harper, we can see he’s just nodding to Obama’s *IAA like he did to Bush’s oil barons. We know Stephen Harper is a control freak, so James Moore’s “radical extremists” speech is deliberate.

  10. “There should be no distiction between infringing a trademark and copyright with patent etc. as far as illegal trade is relevant.”

    AFAIK, this is incorrect. Patents are national and, unlike copyrights and trademarks, one country has absolutely no obligation under international law to enforce another country’s patents. A generic medicine might be manufactured completely legally in one country (such as Brazil or India) even though it infringes a patent in another (such as the EU).

    And the term “counterfeit” has NEVER been used to describe patent infringing goods prior to ACTA.

  11. Rebentisch says:

    GI protection
    “De Gucht told the European Parliament that without the inclusion of geographical indication and industrial designs, the EU would have to reconsider the benefits of the treaty.” – Ironically De Gucht is mandated by the EU treaties to promote Free Trade and remove barriers to trade. That is unique about the EU Treaties, they define very specific partisan policy objectives. GI protection, by definition a geographical non-tarriff trade barrier is according to prevailling European policy consensus desirable, but still GI is incompatible with a free trade agenda. If De Gucht lacks competence by the Treaties to promote trade barriers, he is thus incompetent to push for them in international ACTA negotiations. You just have to ask a technical question about the legal mandate of his policy statement. De Gucht still argues as if he was in a kind of government but he is nothing but a Commissioner, cmp. his FAZ Interview http://www.faz.net/s/Rub0E9EEF84AC1E4A389A8DC6C23161FE44/Doc~E86EC25F882904C79AACA8185CE9C8FE9~ATpl~Ecommon~Scontent.html

  12. ACTA.is about control!
    Not about lost jobs and all this false fear mongering pie in the sky stats etc…

    Instead of working on a bill to weaken liberties our politicians should be reconsidering control of our nation by the rich of other nations via these silly trade agreements etc. Im sorry i don’t want laws being put in place like how Americans do where they don’t even read the law or care about the consequences.

  13. EU Consistency
    > And the term “counterfeit” has NEVER been used to describe patent infringing goods prior to ACTA.

    This is why the EU wants it in ACTA, so all ACTA countries may prevent illegal infringing goods? This is about consistency where an infringing product should not be differentiated between copyright, patent, and trademark. It’s time to make patents equal to copyrights and trademarks as far as illegality is concerned? Why should a small group be allowed to make special rules?

  14. Reading law is painful
    > Im sorry i don’t want laws being put in place like how Americans do where they don’t even read the law or care about the consequences.

    I don’t know about you, but reading law is painful. One sentence can be the entire paragraph with a colon that extends it to maybe a whole page etc. You’re right though, the consequences are even worse than reading.