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.
