18 July 2012Copyright

“Hello Democracy”: EU parliament rejects ACTA

Following the European parliament’s rejection of the Anti-Counterfeiting Trade Agreement (ACTA), observers say politicians have “misunderstood” the treaty, which is aimed at reducing counterfeiting and piracy.

Before the vote, the multinational treaty was supported by 22 EU member states and eight other countries including the US and Australia. But Members of the European Parliament (MEPs) dealt ACTA a blow on July 4, 2012, with 478 voting against, 39 in favour and 165 abstaining.

As a sign of the treaty’s unpopularity, some MEPs held up signs that read: “Hello Democracy. Goodbye ACTA.”

ACTA, first signed in October 2011, aims to form an international framework for targeting counterfeit goods, generic medicines and online piracy. It has provoked a storm of controversy, with campaigners mainly objecting to perceived violations of civil liberties online. Earlier this year, thousands of Europeans protested on the streets, while the parliament received a petition signed by 2.8 million people urging it to reject ACTA.

These fears coincided with suspicions that politicians were negotiating the treaty in secret, and with widespread discontent at two proposed, but postponed, pieces of US legislation: the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA).

It was this US legislation—halted in January this year—that first led to objectors becoming misguided, said Roland Mallinson, partner at law firm Taylor Wessing LLP in London, who has closely observed developments surrounding ACTA.

“ACTA has been completely misunderstood: the campaigners focused on SOPA and PIPA and then turned their guns on ACTA,” he said. According to Mallinson, the Internet has helped to “whip up a frenzy” over ACTA while MEPs have failed to analyse the treaty adequately. “I wonder about how much they read the text,” he said.

Explaining that much of the treaty was actually uncontroversial, Mallinson said it wouldn’t have radically changed anything in the EU and encouraged people to read it more closely.

Lucy Nunn, senior associate at law firm Field Fisher Waterhouse LLP in London, added that the law on civil enforcement of IP rights is already harmonised in the EU, and the requirements of ACTA are consistent with that. “Criminal IP enforcement is not so harmonised, although ACTA is largely consistent with the English position. In the UK at least, ACTA would not have provided rights holders with any significant new weapons in the fight against online piracy here,” she added.

The most controversial aspect of ACTA is Section 5, Article 27: Enforcement of Intellectual Property Rights in the Digital Environment. Nunn said there is a perception that if ACTA were ratified then Internet service providers (ISPs) would be required to police the Internet in a “Big Brother-esque” fashion.

However, she noted that Article 27 is “broadly consistent” with the current EU position. Although it calls for wider cooperation within the business community to address counterfeiting and piracy, there is no express provision dealing with monitoring by ISPs. “In fact, Article 15 of the E-Commerce Directive specifically prevents member states from imposing a general obligation on ISPs to monitor the information they transmit or store, or to impose a general obligation actively to seek facts or circumstances indicating illegal activity. This fear is unfounded,” she said.

Other controversial provisions, such as Article 27(4) enabling ratifying states to require ISPs to disclose the identity of subscribers in some circumstances, are not mandatory, she added. “What is more, this is a remedy that is already available to the English courts, with or without ACTA.” Nunn pointed to a recent case involving O2, which was ordered by the High Court to hand over the details of 9,000 broadband customers suspected of downloading pornographic films.

She said the main benefit of ACTA for rights holders would be “cross-border cooperation”. Because laws vary across the world, it is often difficult to deal with online infringements and easy to disguise one’s identity online, she said. “Those who wish to engage in large scale online piracy will often set themselves up in jurisdictions without developed IP protection mechanisms, precisely to make enforcement difficult for rights holders. The widespread adoption of ACTA could potentially have led to there being fewer hiding places for determined infringers,” she added.

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