R.I.P. ACTA (For Now)

R.I.P. ACTA (For Now)

While North American IP enthusiasts had likely been pre-occupied with the controversy surrounding the stalled American anti-internet piracy bills known as SOPA and PIPA (covered by IP Osgoode here), Europe has been struggling to deal with the Anti-Counterfeiting Trade Agreement (ACTA). Even though it was designed to be an international framework for improved intellectual property rights (IPR) enforcement, numerous issues have plagued the treaty from the beginning. These have included the veil of secrecy around its conception and initial discussion, the comparisons with SOPA and PIPA, and the possible use of criminal sanctions against alleged miscreants— all of which have served to undermine efforts towards its ratification. After months of deliberation, debate and controversy, the European Parliament (EP) has voted ACTA down, and overwhelmingly so – with 39 declarations for, 478 against, and with 165 abstentions. With 70% of the EP deciding against it, commentators have declared ACTA as “effectively gone.”

If the passage of Canada’s copyright reform bill (covered by IP Osgoode here) after nearly 15 years of lobbying and revision has shown anything, it’s that persistence pays in the field of IP legislation. If copyright reform is a key goal of EU interests, as it has been with Canada, then it is only a matter of time before ACTA 2.0 or its revised equivalent shows up on the horizon. Given this likelihood, here’s a brief recap of the major events and debates in the life of ACTA, which might be useful in helping readers determine what the next EU IP reform treaties might bring.

The European Commission (EC) cited ACTA’s primary importance as being trade-related, especially with regards to balancing the rights of the creators of IPRs with those of EU citizens and consumers. It was also quick to point out that ACTA was mostly enforcement-based, and aimed to strengthen existing IP rights, without seeking to add an extra layer. And finally, the EC rebuffed the broad scope of the treaty by justifying it as necessary for the protection of “all European innovators and creators, through a broad range of means,” including ‘best practices’ mechanisms to ensure both civil and criminal enforcement were uniformly applied across EU borders.

Given that the agreement was touted as beneficial for both “developed and emerging economies,” it is interesting that BRIC countries such as Brazil and India had spoken out against ACTA, with the former claiming that the negotiation process was itself flawed, non-inclusive and illegitimate, and the latter pointing out that ACTA severely limited the flexibility that developing economies need, by disallowing them the full benefits of efficient IPR-usage. The fact that the original communications around the treaty were leaked on the internet in 2008, ultimately leading to a complete version of the draft treaty being released in December 2010—with even the European Parliament threatening its own Commission with court action over its (the EC’s) suspicious behaviour— may have served to stir an ever-growing hornet’s nest over ACTA’s most controversial provisions.

Margot Kaminski’s analysis highlighted ACTA’s impact on international law on both practical and thematic levels, and pointed out that its acceptance would have led to increased governmental interference in issues of IPR enforcement normally handled by private companies. More importantly, Kaminski emphasized that the current global recession puts an increased strain on cash-strapped governments to pursue IPR enforcement within their own borders, instead of focusing on development issues, which is something that has been commented on elsewhere as well. Still other critics focused on the similarity between ACTA and SOPA, reffering to ACTA as SOPA’s ‘big sister,’ alluding to the fact that ACTA effectively encompassed SOPA’s free-speech limiting provisions and expanded on these to include generic drugs, pharmaceuticals and goods. ACTA had therefore been touted as “part of a multi-decade copyright campaign,” with countries being compelled to fall in line with a majority view favouring punitive copyright enforcement, in exchange for trade and economic development prospects.

More interesting perhaps, was the increasing solidarity between the opponents of ACTA. While civil protests were marked by the designated days of action, and online awareness campaigns that culminated in mass protests all over Europe, it was the retractions by various governments (Poland, Slovenia, Sweden, Germany, Bulgaria among others) in the days following that highlighted just how divisive ACTA had become, creating much doubt in the EC’s collective mind, even as it signed the treaty. The resignation of Kader Arif, the rapporteur of the EP for ACTA, followed by his vehement criticism of the process of its negotiation and adoption only echoed concerns already circulating in the civil world. All this fracas then led to renewed concerns about whether the rhetoric from the SOPA protests could have affected public perceptions of ACTA’s content and goals, with blame being placed on the drafters for being unclear about the treaty’s motives, prompting attempts to clear things up, at least with respect to comparisons with SOPA. Some members of the EC hit back, by suggesting that the protests “do not always live up to the supposedly democratic intentions.”

In May 2012, EC had decided to stall the ratification process of the treaty, and asked for a ruling by the European Court of Justice (ECJ) on ACTA’s legality. The EC deemed this a “necessary step” to ensure that the fundamental freedoms of the public were protected, even as rumours and misinformation would have been put to rest. Even so, the EP decided not to wait for the ECJ’s ruling on ACTA by voting on it before the Court’s judgment was released, reflecting just how unpopular the treaty had become.

For its part, Canada had been embroiled in the ACTA controversy since its inception and signing. The government has touted its assent as being directed towards the internationally cooperative best practices that the treaty would have encouraged, especially with respect to the development of a new legal framework designed to counter mass scale copyright infringement. While the official Canadian stance had been that the country’s national copyright law would trump ACTA, critics highlighted that some ACTA-like provisions were in Bill C-11— which has now received royal assent and will soon become Canadian law— even as they dismissed the actual passage of ACTA as being unlikely. From the Canadian perspective, it seemed as if the treaty’s consequences on the “digital locks” debate was one of the chief causes of concern with the treaty, although this country has now pre-empted the EU on this aspect by including these provisions in C-11 anyway. Other issues of process and substance that hark back to the nature of democratic dialogue and law-making had also been discussed in connection with ACTA.

Ahead of Wednesday’s vote, the plenary session of the MEPs on July 3, 2012 was a cacophony of contradictions, with supporters expressing the concern that a vote on ACTA before ECJ’s ruling would be irresponsible, even going so far as to weaken the and EU’s “defence of IPRs….across the world.” Interestingly, the pro-ACTA opinions seemed to centre purely around the concerns of defence, protection and trade-related enforcement measures, while the anti-ACTA voices considered the importance of public opinion, and the need for increased input from EU citizens to create a balanced treaty that would “allow both business models to exist” – the traditional defensive stance, along with the newer “sharing” one. Ultimately however, the sour taste left in the mouths of many stemmed from the overall approach to the creation of ACTA in first place; as British Labour MEP David Martin stated, “Law negotiated and pushed through in secret is usually bad law.” Perhaps its drafters would do well to take this lesson to heart, and allow for a democratic and cooperative drafting process for the next round of IP reform legislation in the EU. This would be more reflective of the quest to achieve the ideal and ever-elusive balance between the rights of creators versus those of society that IP law is supposed to continuously strive for.

On a grander scale, the fight over global IPR management and enforcement might just be the beginning. Awareness over a new international IP treaty, the Trans-Pacific Partnership Agreement (TPP), which Canada has just been invited to join, has been spreading slowly but surely. The criticisms with this are all-too familiar— ranging from secret negotiations to inadequate representation of all parties and stakeholders, and indicating what is perhaps a sad trend in current international IP law negotiations, but one that is facing stiff criticism from global civil societies and governmental organizations alike.


Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.