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 onlyregard 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.