ACTA Coming Down to Fight Between U.S. and Europe

With yesterday’s leak of the full ACTA text (updated to include the recent round of talks in Lucerne) the simmering fight between the U.S. and the E.U. on ACTA is now being played out in the open. During the first two years of negotations, both sides were at pains to indicate that there was no consensus on transparency and the treaty would not change their domestic rules.  Over the past four months, the dynamic on both transparency and substance has changed.

The turning point on transparency came as a result of two events in February and March. First, a Dutch government document leak that identified which specific countries were barriers to transparency.  Once identified, the named European countries quickly came onside to support release of the text, leaving the U.S. as the obvious source of the problem.  Second, the European Parliament became actively engaged in the ACTA process and demanded greater transparency.  As the New Zealand round approached, it was clear that the Europeans needed a resolution on transparency.  The U.S. delegation used the transparency issue as a bargaining chip, issuing a release at the start of the talks that it hoped that enough progress could be made to allow for consensus on sharing the text.  The U.S. ultimately agreed to release the text, but subsequent events indicate that it still views transparency as a bargaining chip, rather than as a commitment.

At the conclusion of the latest round of negotiations in Lucerne, the U.S. did not achieve its goals for the talks and refused to agree to the release of an updated text.  The disagreement between the U.S. and E.U. has played out in the open this week, with the USTR’s Stan McCoy acknowledging that the talks did not achieve as much as the U.S. hoped and EU Commissioner Karel de Gucht plainly blaming the U.S. for blocking release of the text, indicating that he did not expect much progress in the next round on talks in Washington, and calling out the U.S. for its “hypocrisy” on key issues.  The fact the text was leaked within hours of de Gucht’s comments highlight Europe’s frustration with the U.S. position on transparency.

The transparency fight is really cover for the bigger fight – the substance of the treaty.  A review of the latest text reveals that virtually every major area of disagreement (there are still many) comes down to the U.S. on one side and the E.U. on the other.  The various other ACTA countries including Canada, Mexico, Japan, Korea, Singapore, Australia, New Zealand, and Switzerland, are often simply left to pick a side.  There are some independent proposals and some specific language suggestions from those countries (including a coalition of Australia, NZ, Singapore, and Canada promoting a provision on abuse of IP rights), but most of the agreement boils down to the U.S. vs. the E.U. 

By far the biggest source of disagreement remains scope of the agreement, with the U.S. (supported by Australia, Canada, New Zealand, and Singapore) pushing for an agreement limited to trademark and copyright, while the E.U. and Switzerland seeking to extend it to all intellectual property.  Of particular importance to the E.U. is the inclusion of geographical indications and industrial designs, with de Gucht calling the issue a “red line” issue and questioning the value of the treaty if they are not included.  If they are included, many countries will be forced to make significant changes to their domestic laws, since many do not have criminal or civil enforcement or border measures dealing with the issue.  In other words, satisfying the E.U. on the issue may require reneging on earlier commitments to leave domestic laws largely untouched.  However, failure to satisfy the E.U. may ultimately kill the agreement altogether.  Moreover, with the same U.S. companies that urged the government to negotiate ACTA, now warning against extending it too far, adopting the E.U. position risks alienating some of ACTA’s biggest supporters.  The issue of scope is one that will ultimately require one side to cave or otherwise leave ACTA in limbo for the foreseeable future.


  1. WOO!
    “failure to satisfy the E.U. may ultimately kill the agreement altogether.”

    Sounds like a plan to me! Go go E.U.! Push your nonsensical demands and KILL THIS THING ONCE AND FOR ALL!

  2. A firrm, simple declaration against ACTA
    Please see:

    ACTA, a treaty designed to attack the rights of computer users in some 40-odd countries — and others later — is encountering increasing opposition.

  3. I vote for option #3
    Leave the ACTA in limbo for the future!

  4. Still waiting for Godot
    ACTA … scene 3 of the theater of the absurd.

    Absurd to think at the start that this could all be done in secret and slipped under the rug.
    Absurd to think that the US could dictate the terms and everyone else just roll over (well not this time anyways).
    Absurd that governments, our own included, promise transparency and openness then follow through so well 0_o

    I am so pleased to see that the straw houses of Hadopi, ACTA and hopefully C-32 are starting to crumble under the light of reason. There does seem to be the beginning of a trend away from the legislative hammer approach. Suing customers failed, 3-strikes was a no go, draconian laws are proving difficult to slip by. I wonder what the RI/MPAA and their cohorts will try next before they sink to their final rest?

  5. Star
    Hi Michael,

    This is James, the page designer who usually works on the business section at the Star (In which I sometimes set your columns). I stumbled upon your site while googling for the new copyright laws while writing a short paper. I thought I’d just say hi!

    You are the first Star columnist I found while googling for information, the second being Ellen Roseman.

    Bye now!

  6. Between Two Giants
    It’s good to see the EU standing firm for a version that integrates with their society, even if it encompasses more turf than the USA has proposed. I expect Canada to do the same, for our needs and way. We may not have the negotiating clout of the EU/USA, but it is still our piece of the world, and our options are open beyond the rules the behemoths enact to serve their own needs.

  7. Easily work aroud
    The US will cave on Geographic indicators. Then every where they make sparkling wine in California there will be a neighborhood named Champagne. Towns in Quebec will be falling all over them selves to rename some street, neighborhood or village Parmagian. etc, etc.

  8. Easily work aroud
    Or they will do like McDonalds does where they sell you American soy burgers by naming their meat company “Real Canadian Beef”.

  9. I am so pleased to see that the straw houses of Hadopi, ACTA and hopefully C-32 are starting to crumble under the light of reason.