During the last weeks
Europe has witnessed one of the most pronounced protests in recent years. The
protests that initially started in the online world culminated in street
demonstrations in dozens of European capitals and cities to manifest strong
opposition to ACTA. Pushed by a general feeling of being misinformed by
European leaders as well as national governments, people took their fears of
curtailed fundamental freedoms to the streets.
Undoubtedly, weeks of
persistent protests had an impact on the highest national as well as European
decision-making bodies. First, a couple of governments decided to stay the
ratification procedures even though they have signed the agreement. This fact
alone proves the massive pressure exerted by the public on their
representatives. On the European level, the Commission decided to task the
Court of Justice of the EU (CJEU), Europe’s highest court, with determining
whether ACTA is compatible with Europe’s fundamental rights.
The precise questions
to be put in front of the Court are still to be drafted and much will depend on
the court’s answer, including a final parliamentary vote on the agreement that
is also postponed as a result of the pan-European protests and the Commission’s
decision to involve the CJEU. Parliamentarians hope to get more clarity from
the court before casting their final votes. Even if the CJEU declares the
agreement to comply with Union law, obviously having only regard to a purely legal analysis, one should not lose sight
of the overall political context. ACTA as such does not exist in a vacuum and
in whatever direction the ratification process will go in the end, policymakers
as well as the public should keep in mind the following points.
First, ACTA has
already had first important effects in that it essentially focused the public
debate around the various ways IPRs are, could or should be enforced online.
Even if the provisions of the agreement as such would not require the EU to
pass more restrictive enforcement laws, the public and political debate is
clearly biased towards assessing stricter laws. In practical terms, IPR
enforcement agreements like ACTA could result in increased pressure on some
signatories to interpret some of the (often vague) provisions as strictly as
possible. This point was passionately raised by Canadian law professor Michael Geist during
a European Parliament workshop on ACTA at the beginning of this month. Furthermore,
in some jurisdictions stricter enforcement laws would not be ‘offset’ by
adequate safe harbours or exceptions and limitations as found in other
countries.
Second, and closely
related to the first point, is the ACTA debate’s distraction from the more
pressing issue of IPR reform. Existing copyright laws got simply out of date as
a result of the Internet age and it is Europe’s copyright system in particular
that is too rigid and prescriptive for today’s technological development (not
to mention future innovations we
can’t think of at this point in time). Instead of trying to tighten the
enforcement component of a system that became increasingly anachronistic to
reality, policymakers should take care of the system in the first place.
Third, the Commission
will soon face another test of how seriously it takes into account these
concerns and the concerns of the many thousands involved in recent protests. For
this year the Commission is scheduled to revise the IPR Enforcement Directive (IPRED). Given that last year’s IPR strategy explicitly mentioned the goals of
tackling copyright infringements ‘at source’ and to foster ‘cooperation of
intermediaries’, heated debates are very likely to emerge.
Interestingly, during
a recent Commissioners’ meeting, Neelie Kroes, the Commissioner
responsible for the EU’s Digital Agenda, stressed that in revising the IPRED
the Commission should ‘adopt a prudent and balanced approach to this
politically delicate exercise, and take account of existing texts on the
protection of data and privacy in the areas of telecoms and fundamental
rights’. With ACTA very likely to cast a cloud over this exercise, it will be
interesting to see what the Commission’s precise understanding of ‘prudent’ and
‘balanced’ will look like.
