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EP Committees Reject ACTA As Backlash Against Secretive IP Agreements Continues to Grow

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Thursday May 31, 2012
Earlier today, three European Parliament committees studying the Anti-Counterfeiting Trade Agreement - the Legal Affairs Committee (JURI), the Committee for Industry, Research and Energy (ITRE) and the Committee for Civil Liberties, Justice and Home Affairs (LIBE) - all voted against implementing ACTA. The rejection from all three committees confirms the lack of support with the Parliament for ACTA. A final European Parliament vote is expected in July with additional committee recommendations coming next month.

The strength of the anti-ACTA movement within the European Parliament is part of a broader backlash against secretive intellectual property agreements that are either incorporated into broad trade agreements or raise critical questions about prioritizing IP enforcement over fundamental rights. This week the Dutch Parliament voted against ratifying the Anti-Counterfeiting Trade Agreement, a move that some experts say could effectively kill ACTA (which is a "mixed agreement") throughout Europe. In addition to the two anti-ACTA resolutions, the Dutch Parliament passed a third resolution against similar treaties:

The House of Representatives,

- observes that treaties like ACTA lead to a further formalization of copyrights rules on the international level,
- observes that such treaties are very difficult to modify and as a result can be an extra impediment for future reforms of copyright law,
- observes that strict enforcement of intellectual property on the internet is no solution for the ongoing difficulties regarding copyright law and interferes with internet freedom,
- requests the government to vote against new similar treaties,
- requests the government to focus the copyright policy on economic growth opportunities offered by the internet through, amongst others things, new revenue models for legal content.

The opposition to ACTA and ACTA-style treaties (which obviously include the Trans Pacific Partnership and bi-lateral agreements such as CETA) is part of a growing international trend as elected officials and independent policy officials around the world voice their objection to these treaties.
For example, in December 2010, the Australian Government's Productivity Commission, which is the government's independent research and advisory body on a range of economic, social and environmental issues affecting the welfare of Australians, released a report on the impact of bilateral and regional trade agreements. The report concluded:

The Commission considers that Australia should not generally seek to include IP provisions in further BRTAs, and that any IP provisions that are proposed for a particular agreement should only be included after an economic assessment of the impacts, including on consumers, in Australia and partner countries. To safeguard against the prospect that acceptance of ‘negative sum game’ proposals, the assessment would need to find that implementing the provisions would likely generate overall net benefits for members of the agreement.

In fact, the report was critical of the inclusion of IP in prior agreements as well:

The Commission is not convinced, however, that the approach adopted by Australia in relation to IP in trade agreements has always been in the best interests of either Australia or (most of) its trading partners. Among other things, there does not appear to have been any economic analysis of the specific provisions in AUSFTA undertaken prior to the finalisation of negotiations, nor incorporated in the government’s supporting documentation to the parliament. As noted above, the AUSFTA changes to copyright imposed net costs on Australia, and extending these changes to other countries would be expected to impose net costs on them, principally to the benefit of third parties.

Similar views were expressed in New Zealand in December 2010, when a leaked government document on the Trans Pacific Partnership expressed concern with the shift toward international pressure on IP with limited consideration of the domestic effects:

Traditionally, international intellectual property treaties have been based on two basic rules: the provision of substantive minima obligations and national treatment (see for example the Paris and Berne Conventions). The substantive minima have been periodically amended, mostly to require greater or different levels of protection. While traditionally, recognising the principles of self determination and diversity, a large part of law making would be left to national laws, stronger levels of international IP protection coupled with a larger coverage of issues is increasingly limiting the capacity of states to determine the optimal level and form of intellectual property protection, hence limiting room for cultural and economic difference and maximisation of social utility.

These developments are underpinned by an increasing pressure from rights holders to internationalise a larger array of issues and find international solutions to issues that have only had limited consideration at the national level. This is particularly true for the area of copyright, where rights holders have been seeking the adoption of more intrusive international rules with respect to a range of copyright issues at an early stage of norm development.

While there may be good arguments for an early and more rapid development of international solutions, such approach bears the risk of being premature, lacking evidence at the national level that would suggest a desirable international norm. 

Last year, the Canadian Standing Committee on Canadian Heritage adopted recommendations that were also critical of the inclusion of intellectual property within trade negotiations:

The Committee calls on the Government of Canada to ensure that domestic copyright policies are not part of any present or future trade negotiations; that Canada’s commitments to the implementation of the Anti-Counterfeiting Trade Agreement (ACTA) are limited to the agreement’s focus on combating international counterfeiting and commercial piracy efforts; and that the Government of Canada retains the right to maintain domestic copyright policies that have been developed within the framework of its commitments to the World Intellectual Property Organization and the Berne Convention.

The trend is global: in the United States, Senator Ron Wyden has proposed legislative language requiring Congressional approval of ACTA and requiring disclosure of the TPP intellectual property chapter. ACTA countries such as Mexico and Switzerland have not signed the agreement with a Mexican Senate resolution opposed to ACTA and the Swiss indicating that they will forgo signing for the moment. Most recently, the TPP negotiations included openly critical comments from several delegations who are increasingly opposed to the U.S.-imposed IP rules within the agreement.

The implications of this backlash is significant as it points to increasing discomfort with the inclusion of intellectual property chapters within large scale trade agreements. Indeed, intellectual property is invariably one of the major stumbling blocks within these agreements - whether the inclusion of the Internet provisions in ACTA, the TPP IP chapter, and the Canada-European Union Trade Agreement which is facing a major backlash over the IP rules. Note that these are not "anti-IP countries" but rather countries that recognize that trade agreements frequently do not yield intellectual property rules that serve their national interest. The development of global IP norms is important, but it belongs in open, transparent, inclusive multilateral institutions, not secretive trade deals like ACTA, the TPP, and CETA. meta http-equiv=
Comments (15)add comment

Patrick said:

You scratch my back...
During WW2, North America helped Europe defeat tyranny that had sprung up in their midst.

Nice to see them returning the favour ;)

Patrick
May 31, 2012

pat donovan said:

land grabs
with the interesting aside that france has a troll going for patent wars now; (inventor of color films, etc);

how many mercantile monopolies will be handed out to buy European support?

packrat
May 31, 2012

Frederik said:

It's not America vs. EU, it's MPAA vs. The World
@Patrick

Wow, that is one retarded and cliché remark of yours. Yes, thanks for WW2, however, that doesn't mean you get a vote in our (EU countries) governments for the next 100 years.

All silly patriotism aside, the ACTA (and similar treaties like TPP) are not good for any country's citizens. Not Europe's citizens but also not for American citizens.

For example, ACTA includes a three-strikes provision that says that alleged (NOT proven in court) file-sharers will be kicked off of the internet. This is not part of current US law, but ACTA is a way to sneak it in. It will also drive up the price of internet providers as they will be required to invest in equipment that allowed them to monitor their users. And this goes on and on.

The beneficiaries are the right-holders of IP. These are NOT the artists, but the studio's, and the MPAA, RIAA, and so on.

Also, since this will make it easier for them to punish anyone who wants to consume their content with liberty (pirated or not) it will make it much less likely that proper innovation to occur. Just like RIAA and studios are trying their hardest to slow down or kill Spotify, just as MPAA and the studios are trying to do to Netflix.

In short: if you are a citizen, and you are not a direct stakeholder in MPAA, RIAA, or a studio, then you should be against ACTA too. #commonsense
May 31, 2012

David C said:

Possible clarifiaction
>...in the United States, Senator Ron Wyden has proposed legislative language requiring Congressional approval of ACTA...

Perhaps you should clarify the wording of this sentence. As written it could be interpreted to mean that he wants the Congress to actually approve it. But the following interpretation better fits the context: "has submitted a bill which would require that ACTA be submitted to Congress for approval".
May 31, 2012

Poombp said:

we have come full circle
It seems like many decades ago that the secret negotiations concerning ACTA were discovered and posted on the internet. We the sheeple have been fighting the good fight against these Corpo-Government groups for so long and it seemed at times we would never get a victory, until today.

I believe the American election may be decided on this issue since both major parties support the secretly negotiated ACTA treaty and are in friendly terms with the RIAA and MPAA. Obama is totally in sync with the RIAA and MPAA principles yet most of the voters that got him elected, young and net savvy, are not.

To the cyber-world citizens, freedom to share data and personal privacy, are absolutely none negotiable and the governments of the US and Canada are playing with dangerous forces when they go against these tides of basic human rights.
May 31, 2012

Chris Brand said:

Makes you wonder...
...just how much taxpayer money was wasted negotiating all these agreements.
May 31, 2012

Danux said:

Dutch Hammer
This conclusion is an easy one for the committees to make, if the Dutch's proactive rejection of ACTA ensured that there was no way for unanimous ratification of ACTA in Europarliament. I think the question voting citizens need to ask, now, is "How has something this bad, gotten so close to becoming law? Which elected representatives promoted this?"

The Netherlands' employment of open-list proportional representation certainly looks like a functional system for real democracy, right about now.
May 31, 2012

mce said:

Re: WW2 & MPAA vs The World
@ Frederik: I did not see Patrick's WW2 comment as a "retarded cliché", but as a complement!

MCE
May 31, 2012

IamME said:

Oppression is Oppression
Whether it's the Nazis of WWII, whether it's current day China or the monarchs of old. Oppression is oppression and limiting free and open communications is the first step down that road. The Internet is the newest revolution in communication and it's largely not been capitalized in favor of a free and open model. ACTA, TPP, C-11, C-30, DMCA, PIPA, SOPA, HADOPI, etc. etc. etc. Look at the Internet provisions, they ALL aim to limit free and open communication and/or impose tracking regimes and some go far as to impose penalties based on unproven accusations (3-strikes). Fear-mongering and limitation of rights...telltale signs of an oppressive regime.

Today's war is not being fought on the battle-field, the oppressed do not have skin of a certain color, are not from a certain country or belong to a certain religion. The US and their mega-powerful media lobbies are waging a technology war on EVERYONE!! They want to take away our on-line freedom, and for the worst of reasons...sacrificing our freedoms, rights and liberties simply to protect their profit margin, because they're too stupid to adapt.

The goal is to protect/prolong the longevity of business models no long viable with the current technology. The obvious solution is to limit the technology. It's easier to have someone else do your dirty work than it is to actually change.
May 31, 2012

john said:

...
Dr. Geist, if the European nations reject ACTA, what happens to the rest of the countries that signed onto ACTA? Are they still subject to ACTA laws, or will ACTA die?

I think this will be of extreme interest to those following this draconian law.
May 31, 2012

jason said:

@ Frederick Open your mind
Artists do not hold any rights to their IP? What planet are you living on? Spotify is opposed by a number of independent labels and artists who are not interested in supporting a company that pays the majors just enough to stay off their back and has a lower tier of compensation for independents. The facts of the matter are that Spotify is building a billion dollar valuation while paying working independent artists so little they pull their product from the service, if they don't have a label making that decision for them. And then there's Sean Parker, who made a fortune by giving away IP for free (Napster), now making a fortune by giving away IP for almost free (spotify's 0.00029 cents a play).

Your desire to frame this as a RIAA mafia vs plucky innovative startups is a common convenient consumer perception when it comes to Spotify. Just be aware that artists with IP do not share your viewpoint. So if you love music and the artists that create it, please pressure Spotify to compensate artists fairly.
May 31, 2012

IamME said:

Spotify
The problem as an independent is volume. Independents simply do not sell as much volume as big label artists. New artists, niche markets, that sort of thing. I'll tell you the same thing the Canadian government has been telling us with C-11 and DRM. If you don't like the product...don't use it...don't buy it.

If the music industry has shown anything over the years it's that fairness rarely works in to the model and it's usually the artist that ultimately pays by signing unfair or stupid contracts. The label can make millions from album, but depending on the contract...the artist usually makes a pittance...or nothing. Only the most bankable of artists can actually negotiate a sales percentage.
May 31, 2012

Eric said:

Re: Dutch Hammer
@Danux: the Dutch proactive rejection is a motion from Parliament that can be reversed any time. It is a declaration of intent, no doors have been shut on ACTA in the Netherlands. If ACTA makes it through the EUP the pressure on the Dutch government and parliament will be huge. At that time, a new motion to strike the recent motion and adopt ACTA *will* be brought to the table.

And consider the background of this motion: we have elections on sept 12 after our government recently resigned. Two parties who have been pro-ACTA until now suddenly changed their vote.


May 31, 2012

Patrick said:

WW2, etc.
@Frederik - I'm not entirely sure how you read all that into my comment, but I apologize for any offence.

As MCE recognized, my comment was intended as a sincere compliment, in recognition of Europe's strength in defeating a common threat that originated on our side of the ocean (this time)...

Patrick
June 01, 2012

Jakob said:

Re: John
It is actually pretty simple: ACTA will go into force if at least 6 countries ratify it.

At the moment we have:
EU where ACTA seems to be going down, more or less in flames!
New Zealand, Australia and Canada as important western democracies with somewhat of a dilemma on signing ACTA or not.
The official USA is 100 % committed to push ACTA through while there is a popular outcry against it.
Japan, South Korea and Singapore are all pretty sure to ratify unless China starts to pull against ACTA. I do not think China wants to destroy ACTA badly enough to sever their ties to the western world for it.
Morrocco is a totalitarian monarchy where ratifying seems a given.

Now to the really significant parts:
If EU votes ACTA down the question becomes: How can ACTA survive.
Well 4 countries will almost for sure ratify ACTA.
It takes 2 more to get it kicked into action.
The official USA is going all in to assure that ACTA will get ratified. The questions in USA is if there will be enough actions against it and if the legality of USTR is getting shot down in court.
Canada will most likely follow USA 100 %. I am sorry to say it, but Canada is extremely hard to see crossing USA, no matter what happens.
Australia and New Zealand will probably start to question ACTA after EU voting it down as vocally as it happened. It will, however, take a lot of effort to get it killed there. If USA and Canada falls, I think New Zealand will have significant problems holding on.

All in all, ACTA is still alive and kicking. The big joker at the moment is if USA gets through ratification without significant civil protests or it getting shot down by the court. If ACTA falls in the USA ACTA could easily fall internationally, but if USA gets ACTA ratified, ACTA will almost for sure go into action.

EU is an important place to see if ACTA is untouchable. It seems to be a no to that question. USA is the place to look to see if ACTA still can get through the storm comfortably. It seems USTR have overplayed their hand legally. New Zealand is the place to look to see if ACTA has any chance of getting into force still.
June 02, 2012

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