ACTA Web Provisions Again Spark Heated Debate Over Human Rights Issues

Critics including the EU privacy watchdog, consumer and civil society representatives and some lawmakers, said the vagueness of the language, particularly the chapter on digital enforcement, is what threatens human rights. That chapter is “a masterpiece of ambiguity,” said Assistant European Data Protection Supervisor Giovanni Buttarelli. The EDPS office issued a highly critical opinion on the agreement last month (CD April 25 p6).

Everyone agrees IP protection is essential for maintaining Europe’s competitive advantage in an interconnected economy, said Dimitrios Droutsas, of Greece and the Socialists and Democrats, who authored the committee’s draft response to the treaty. Parliament must ensure that artists, activists, political dissidents and other participants in the digital debate aren’t stifled, he said. The file-sharing culture poses direct challenges to IP rights enforcement, and the task of policymakers is to find the right balance between creative rights and protecting the voice of European citizens, he said.

It may not be politically correct, but one could easily say that ACTA is dead, Droutsas said. He believes the treaty is “not up to what is needed,” doesn’t strike the right balance and threatens fundamental rights, he said. His draft opinion recommends to the lead International Trade committee that Parliament reject the treaty in its current form. EU institutions must then consider what comes next, because “we need something” to protect IP for the future, he said. LIBE will vote on the opinion by month’s end, he said.

The EC “is not prepared to declare ACTA dead,” Jessen said. It intends to keep the matter before the European Court of Justice (ECJ) even if Parliament rejects the treaty, he said. If the court finds no fundamental rights violations, the EC will resubmit the document, but if the EC loses it will at last have had guidance about how to proceed with changes, he said. Asked what the EC would have done differently about ACTA, he said the debate was “hit by a tsunami” driven in part by the U.S. Stop Online Piracy Act (SOPA) and PROTECT IP Act. The EC will do better outreach, but will maintain the same content after trying, and failing for 10 years, to get the issues on the agenda of the World Intellectual Property Organization and the World Trade Organization, he said.

The core of the “raging debate” about ACTA has little to do with the actual agreement, and is between those who want to expand digital rights and those who want to see them fade away, Jessen said. Europe’s economy depends on innovation, and that’s why the EU has built up IP protections, he said. They must be enforced, and that’s where ACTA comes in, he said: It ensures that rights can be safeguarded by setting a floor, not a ceiling, for enforcement. ACTA doesn’t affect underlying IP laws, he said. Jessen slammed critics who want the EC to revamp its IP rights enforcement and copyright directives before taking on ACTA, calling it a “false dichotomy.” Claims that the treaty preserves copyright rules that are unfit for the digital environment are “totally unsubstantiated,” he said.

In the U.S., 50 legal academics signed a letter to the Senate Finance Committee asking it to press for ACTA to be submitted to the Senate “for approval as an Article II treaty” or to Congress as an “ex post Congressional-Executive Agreement” (http://xrl.us/bm8bgk). “It is clear that other ACTA negotiating parties -- including the EU, Australia, Mexico, and others -— are treating ACTA as a binding international agreement requiring legislative ratification under constitutional standards similar to our own,” the letter said.

The Obama administration recently shifted course, arguing legislative approval of ACTA isn’t needed because it was authorized by the PRO-IP Act, but the relevant section of that law provides only for a “joint strategic plan against counterfeiting and infringement,” not negotiation of international agreements, the letter said. Given that ACTA negotiation started in 2007, that PRO-IP wasn’t passed until 2008, and that Congress was told during PRO-IP debate by the Bush administration that the treaty was a “Sole-Executive Agreement” not requiring congressional approval, PRO-IP can’t be considered an “ex ante authorization” for ACTA, the letter said.

Congress will be “ceding unprecedented power to the Executive” if it doesn’t demand its own review of ACTA or if Senate Finance doesn’t hold hearings and pass legislation preventing U.S. assent to ACTA without “express Congressional consent,” the academics said. They include well known IP law scholars such as Harvard’s Lawrence Lessig, the University of California-Berkeley’s Pam Samuelson, American University’s Peter Jaszi and Santa Clara University’s Eric Goldman.

The European Consumers’ Organization (BEUC) is “very critical of ACTA” because it pushes the balance of rights towards rightsholders and away from citizens’ rights to access knowledge and information, said Senior Legal Officer Kostas Rossoglou. That balance won’t be achieved unless the interests of consumers and actual creators, and not just the music, movie and other creative industries, are on the table, he said. BEUC is concerned about ACTA references in the digital chapter (Article 27) to a “fair process” for challenging rightsholders’ enforcement attempts, because it should be “due process,” Rossoglou said. The “fundamental principles” mentioned aren’t the same as “fundamental rights,” he said. The EC is already looking into revamping its IP enforcement directive, and ACTA must be read in conjunction with that, he said. The EC should first settle what rights it wants to protect, then deal with enforcement, he said.

Much is made of Article 27’s provision that ISPs may have to divulge information on subscribers, but critics aren’t reading the entire article, which goes on to specify subscribers suspected of infringing, said LYDIAN Law Firm Partner Annick Mottet Haugaard, who represents brand and trademark owners. The chapter also guarantees fundamental rights, so how can opponents claim that ACTA breaches those rights, she asked. Rejecting ACTA will send a “very bad signal” to third-party countries and to counterfeiters, who will be “rubbing their hands with glee,” she said.

Article 27 binds parties to encourage private companies to enforce IP rights, said European Digital Rights Advocacy Coordinator Joe McNamee. VeriSign, search engines, ad networks and payment services providers such as Visa, MasterCard and PayPal would be able to enforce IP around the globe, he said. VeriSign has already sought the right to remove .com names globally if it believes it necessary, he said. Google already enforces U.S. copyright around the world, removing websites from its global search engine if they're found to infringe in the U.S., he said. McNamee’s comments on U.S. enforcement have nothing to do with ACTA, said Jessen. The treaty allows countries to provide for cooperative IP enforcement, but says twice that it “shall” be in accordance with each’s laws and regulations, he said. He asked critics to stop making generalizations and be very specific about what’s wrong with the agreement.

The debate shows that ACTA is being held hostage to discussions about revising the existing IP rights protection and copyright directives, Jessen said. Parliament and the Council of Ministers will have the final word on those measures, and that’s for debate when the EC proposals are on the table, he said. It isn’t enough from a legal point of view to have general clauses on fundamental rights in ACTA, said EDPS’s Buttarelli. There must be specific safeguards in any treaty signed by the EU, he said. He cited apparent disagreement within the EC itself, saying his opinion won congratulations from Digital Agenda Commissioner Neelie Kroes and Justice, Fundamental Rights, and Citizenship Commissioner Viviane Reding. Kroes acknowledged in a May 4 speech that “we are now likely to be in a world without SOPA and without ACTA.”