European Parliament Set to Toss Out ACTA, International Trade Committee Chairman Says

Martin’s draft report recommended that Parliament withhold consent. ACTA’s problem lies in its lack of precision in some areas, such as the definition of infringements on a commercial scale, Martin said Wednesday. He said he has had many conversations with EC officials who are clear about what the term means, but the document itself doesn’t explain it. Martin’s other major concern is ACTA’s obligation on ISPs to effectively act as “Internet police force,” he said. He’s also worried that the agreement is a “coalition of the willing” that is less, rather than more, likely to bring in countries, such as China, Brazil and India, with high piracy rates.

It’s piracy that’s the problem, not ACTA, said Christofer Fjellner, of Sweden and the European People’s Party (EPP), the political bloc that has backed the treaty but whose support for it appeared Wednesday to be slipping. The whole idea behind the treaty -- tackling infringement and counterfeiting -- has been pushed to the background, he said. Killing ACTA won’t help the struggle against those problems, he said. Many politicians say “we could have gone another route,” but when you look at those options, they don’t really exist, he said. Not even the Socialists believe a World Trade Organization (WTO) treaty with China and India would resolve the issues, he said. The fact that not every country is a party to ACTA doesn’t matter, he said; not every nation has signed the Kyoto Treaty. There is a point where the warring sides can meet, Fjellner said. Parts of ACTA make him uncomfortable, too, he said. The EPP thinks “commercial scale” should be better defined, he said.

ACTA came along because the World Intellectual Property Organization and WTO don’t deal with its issues, said Daniel Caspary, of Germany and the EPP. The problems of infringement have been around for many years, and someone has to take the first step toward fixing them, he said. ACTA won’t make the situation worse, he said.

The Alliance of Liberals and Democrats for Europe voted last week to back Martin’s recommendation, said Niccolò Rinaldi of Italy. It wants the EC to seek a new mandate for sectoral agreements to tackle counterfeiting via instruments that are more appropriate than ACTA, he said. Everyone wants to have proper anti-piracy protections but the “devil is in the details,” and the ACTA text is unsatisfying said David Campbell Bannerman, of the U.K. and European Conservatives and Reformists Group. The Green Party has also taken a stand against the agreement, said Amelia Andersdotter, who wrote the draft report for the Industry, Research and Energy Committee (CD April 25 p6).

The decision to support Martin wasn’t easy for the S&D group, said Bernd Lange of Germany. He urged the EC to try to find agreement at the international level that covers all countries. Another issue is that the EU doesn’t yet have a good way for dealing with copyright on the Internet, he said. The EC is going about things the wrong way, he said. It should adopt appropriate copyright laws for the EU before entering into an international treaty, he said. The EC did everything it could to get rid of ACTA’s worst parts, but at this point the agreement should be declared dead, said Pawel Zalewski, of Poland and the EPP.

Parliament has an obligation to try to clarify the treaty, said Moreira. He asked the EC what it thinks the other parties will do if Europe bows out, saying his guess is that the rest of the countries will move on, leaving the EU behind.

Through ACTA, the EU is trying to extend the reach of part of its intellectual property rights systems beyond its borders, said João Aguiar Macado, deputy director general of the EC Trade Directorate. The pact “will not censor the Internet,” and the EU won’t have to change any of its current laws, he said. Most concerns seem to be based on the idea that rights holders will be able directly to invoke the power of courts against consumers, but that’s not true, he said. The only rules in ACTA that will apply in Europe are those that are already part of Community law, he said. As for the “vague” definition of commercial scale, the EU will use its own interpretation and other parties theirs, he said. No one else will impose its definition on the EU, he said.

If Parliament nixes ACTA, the EU won’t be part of it, Aguiar Macado said. “We've tried” to handle the issues in the WTO but there have been no takers, he said. As for the serious question of whether the treaty poses a threat to fundamental rights, he said, that will be decided by the European Court of Justice (ECJ).

Martin said he’s puzzled by the reaction of some of his colleagues. He originally proposed asking the ECJ for an opinion on ACTA and then writing an interim report recommending that the EC immediately clarify some of the issues raised, he said. INTA members rejected that but now some say the agreement should be vetted in more detail, he said. It’s too late now, he said.

Article 42 of the treaty permits renegotiation of the agreement, Martin said. It may be that if Parliament refuses consent and is clear about why it did so, the EC might go back to the other parties to seek changes, he said. But as things stand, he added, lawmakers should make ACTA a “dead letter.” INTA votes June 21 on Martin’s report.

European Digital Rights, however, warned that the widespread assumption that ACTA is dead is “dangerous and wrong.” The issue is being handled by five legislative committees, four of which will provide opinions and INTA, which has overall charge of the file, EDRI Advocacy Coordinator Joe McNamee wrote in a newsletter posted Wednesday. Of the four opinion committees, two still support the agreement, he said.

The current balance is around 53 percent for and 48 percent against ACTA among legislators, McNamee wrote. If just 20 members change their minds as a result of the “massive lobbying campaign currently underway and organised by the European Commission and big business interests,” ACTA will be approved, he said. The situation is even more precarious because often more than 5 percent of members don’t vote, meaning the chances of the current tiny minority being sufficient are “more a matter of luck than anything else,” he said.