ACTA Debacle Said to Highlight Growing Importance of European Parliament, Digital Rights

Much of the credit for the huge no vote goes to external campaigners who engaged constructively with Parliament, Martin said at a press briefing Wednesday. Until he was chosen to write the legislative response for the International Trade Committee, which took the lead in vetting ACTA, he had no idea how much people value the Internet, he said.

The EC has now admitted that, as lawmakers claimed, the language fails to define “commercial use” of protected content and “commercial scale” of infringements, Martin said. Trade Commissioner Karel De Gucht has also acknowledged that the treaty’s sanctions are excessive, he said. Given that, Martin said, he’s puzzled why the EC intends to wait for a ruling by the European Court of Justice on whether the document breaches fundamental rights. It’s a waste of time and money, he said.

The EC probably can’t bring the same text back to Parliament, Martin said. It could if it chooses to modify the agreement in light of the high court judgment, talk to its signing partners and bring a new version back to lawmakers, he said. But that’s the wrong route, he said. It should start from scratch by separating physical goods such as counterfeit medicines from non-tangible Internet goods, he said. The EC could readily have won consent for a treaty to protect physical goods, although what’s really needed there is better cooperation among and training of customs officers, he said.

On Internet issues, the EU should go back to zero and launch a broad discussion on how to reward rights holders while ensuring online freedoms, Martin said. There’s no consensus on how to do that, he said.

Asked what will happen with regard to the countries that have already signed ACTA if the EC offers a new proposal, Martin said the treaty needs six signatures to take effect. If that happens, Martin said he suspects the EC will go back to the signers, try to renegotiate some of the language, and bring the proposal back to Parliament. But Martin said he thinks ACTA is dead. The Australian Parliament has been waiting to see what EU lawmakers do and appears headed toward rejection, and it’s not clear whether some of the other signers will ratify it either, he said.

European developments have had a “ripple effect,” with a recent Australian parliamentary committee recommendation to delay ratification and growing opposition around the world, University of Ottawa Law Professor Michael Geist wrote on his blog. The treaty isn’t dead yet, and may eke out the six signatures it needs, he said. But it’s badly damaged and will seemingly never achieve the goal of its supporters to set a new global IP enforcement standard, he said. But proponents won’t take the vote lying down, he said. In coming months, there are likely to be new efforts to revive the agreement and find alternative ways to implement its provisions, he said.

The “digital rights world can be grateful that the intellectual property lobby employs too many lobbyists and too few strategists,” McNamee wrote in the EDRI newsletter. Lobbyists are salespeople who sell “smoke and mirrors,” he said.

Europe’s content industry viewed ACTA as “all cost and no potential benefit” but it was dragged along by multinational, mainly U.S., lobbies that promise the world but don’t deliver, McNamee said. The component parts of ACTA were coming, as the EC worked toward a criminal sanctions directive, a review of the IP rights enforcement legislation and other privatized enforcement measures in the style of ACTA’s digital chapter, he said. However, there was no sign of the EC trying to boost data protection laws to prevent abuse of personal data by intermediaries carrying out arbitrary policing of their networks, he said.

All European copyright owners had to do was avoid public attention on those plans, McNamee said. But then came ACTA, and, thanks to the Stop Online Piracy Act (SOPA) in the U.S., European citizens were clued in to its dangers, he said. Now the EC will have to think twice about launching the criminal sanctions directive, and may be more likely to improve the IPR enforcement directive rather than making it more repressive, he said. Home Affairs Commissioner Cecilia Malmström has reportedly demanded that the ePrivacy directive be changed to avoid traffic data retention by EU countries, he said. “Digital rights, as a political issue, has moved from the periphery to the centre of the concerns of European policy makers,” he wrote.

"European institutions must now recognize that the alliance between citizens, civil society organizations and the EU Parliament is at the core of a new democratic era in Europe,” said La Quadrature du Net co-founder Philippe Aigrain. ACTA’s proposal to have ISPs enforce copyright online “has rightly proven a step too far” for Parliament, said European Consumer Organization Director General Monique Goyens. The EC’s exclusive focus on longer and tougher copyright rules caused a “hardening of European public opinion towards copyright,” she said. If that erosion of public support is to be reversed, she said, the EU must “update its antique laws with consumers’ rights and practical problems much more to the fore."

ISPs want a more balanced approach to protecting fundamental rights when the EU negotiates international treaties, said the European Internet Services Providers Association. Such pacts should be discussed openly, with input from all stakeholders, in order to give ISPs the legal certainties they need to develop and compete globally, said EuroISPA President Malcolm Hutty.

The vote brought howls of rage from IP owners. It’s a “travesty” because lawmakers should have waited for the ECJ opinion, said the European Publishers Council. Lawmakers “totally ignored proper judicial procedure” and yielded to pressure from anti-copyright groups, said EPC Executive Director Angela Mills Wade. The action will damage European IP and jobs and the economy, said Federation of European Publishers Director Anne Bergman-Tahon.

A treaty that would have served as a key step in raising the global standard for IP rights protection “was held back by inter-institutional differences and concerns over transparency,” said Thomas Boué, Business Software Alliance government affairs director for Europe, Middle East and Africa. Contrary to many statements, ACTA respects individuals’ fundamental rights, Dara MacGreevy, anti-piracy director of the Interactive Software Federation of Europe, said on behalf of Europe’s videogame industry.