By Jakob Kucharczyk in Brussels and Matt Schruers in Washington

In another blow to the troubled Anti-Counterfeiting Trade Agreement (ACTA), the European Parliament’s rapporteur on the trade agreement, David Martin (UK, Socialists and Democrats Group) indicated in a public event on Thursday that he would recommend against the Agreement.

In a blogpost today, MEP Martin also observed that, as many critics noted at the time, that ACTA’s “initial lack of transparency clearly backfired; rumour, wild speculation and paranoia abounded leading to the European Parliament adopting a resolution condemning the secretive approach of the Commission and EU Council of Ministers and resulting in the release of the negotiating documents in April 2010,” and pointed out that a cloud remains over the agreement.

MEP Martin’s statements follow strong concerns voiced by various stakeholders during a public hearing on Wednesday organized by MEPs Marietje Schaake (NL, Liberals) and Ivailo Kalfin (BG, Socialists and Democrats Group). Most of the stakeholders concurred in the opinion that ACTA represents an one-sided effort to enhance IPR enforcement with little regard for side effects, or for flexibilities in signatories’ IPR regimes.  Concerns were also voiced that a heavy-handed approach to ISP cooperation and increased ISP liability exposure could lead to ‘over-enforcement.’ The same is true for arguments highlighting ACTA’s role in cementing current copyright laws in Europe without providing the necessary impetus for stronger and up-to-date limitations and exceptions.

This hearing also provided the opportunity for Techdirt founder and CEO, Mike Masnick, to present a new study commissioned by CCIA on the economic state of the entertainment industry. ‘The Sky is Rising’ clearly shows that the overall entertainment industry has been growing over the past years, despite claims to the contrary.  (A subsequent U.S. Government report reflects that employment in copyright-intensive industries has prospered during the Internet era, confirming Masnick’s findings.)

More than anything, the Internet has turned out to be a great enabler of creative works and their distribution.  Without dismissing efforts to mitigate online piracy, the study urges policymakers to think about the proportionality of enforcement measures to the scale of the problem.  In this light, measures like ACTA lose much of their policy rationale in the minds of many critics.

(While disclosure of the ACTA draft helped to alleviate unfounded fears of customs officials seizing iPods at borders, it could not dispel concerns that the agreement was a one-sided instrument that did not adequately protect the interests of stakeholders other than IP rights-holders).  Notwithstanding that certain revisions were made to ameliorate some of the worst excesses of ACTA, the agreement appears indelibly stained with the mark of having been conceived and developed behind closed doors, and for failing to respond meaningfully to concerns voiced by public interest and industry stakeholders.

Following on the contentious U.S. debate over SOPA and PIPA – bills which were also viewed as having been developed solely for the benefit of certain rights-holder industries – the ACTA debate boiled over in Europe.  This has led to a state of affairs where MEP Martin is recommending against the agreement, and European rejection of ACTA seems very possible.

That ACTA is now foundering should give great pause to policymakers pursuing other trade agreements, including the Trans Pacific Partnership (TPP).  If TPP – an important trade effort which would address numerous issues in addition to IP, and stands to liberalize trade across the Pacific Rim – were also perceived as the work of IP maximalism, it may suffer a fate similar to ACTA, with the costs being felt across many sectors of the economy.

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