Anti-fakes pact hangs in balance

This month the European Parliament flexed its muscles with a key vote in relation to the Anti-Counterfeiting Trade Agreement (Acta). First, some background. The Acta came about because a number of countries were convinced that counterfeiting and piracy were out of control. It was (and still is) claimed that widespread and blatant infringements of intellectual property rights were costing rights-owning industries billions of dollars, resulting in thousands of lost jobs and leading to substantial lost tax revenues. Existing mechanisms to tackle the problems were inadequate in many countries.

For whatever reason, early negotiations by the European Commission, on behalf of the EU, were not as open and transparent as they could have been, and despite being put right in the latter stages of negotiations, the damage had been done. The European Parliament, and by that time many “interest groups”, were suspicious. What was everyone trying to hide?

Meanwhile, one of the pivotal sections of Acta was taking shape: the section that sought to tackle the enforcement of rights in the digital environment. This was a crucial section of the agreement, given that so much infringement takes place via the internet, whether through the illegal downloading of copyright material or the simple sale of counterfeit goods. In seeking to provide mechanisms by which rights holders could better enforce their rights in such circumstances, negotiating parties were seen by some as unreasonably disrupting the rights of all who use the internet.

The objectors were able to mobilise massive support, ironically, through digital media. Electronic protests were coupled with demonstrations in the streets, and the clamour was not lost on the European Parliament. And so, exercising new powers conferred upon it by the Lisbon Treaty, the European Parliament voted in early July to reject Acta by a resounding 478 to 39 margin. This is being heralded as a huge victory for those who had fought and lobbied so hard for the rejection of Acta and while that is undoubtedly true, it is not necessarily the end of the agreement.

The EU cannot ratify Acta without the European Parliament’s consent. So, as far as the EU is concerned, Acta is dead for now. It may be resurrected in the EU, but only in a year or more when the Court of Justice of the EU rules on questions put to it by the European Commission in April, questions that sought to quell the protests by asking the court to rule on whether or not Acta went beyond existing EU law. The European Parliament decided, for political reasons, not to wait for the court to voice its opinion before voting to reject Acta.

However, Acta lives on elsewhere. Several other, non-EU countries signed the agreement in late 2011 when its text was finalised. It will come into force if six of them ratify it. The US government remains resolutely in favour of Acta and will be pushing for ratification. In my view, it is most unlikely that Acta, in its current form, will get the ratification it needs following such decisive rejection by the EU.

But more significantly, even if six of the signatories do now ratify, what chance can there be of obtaining wider acceptance of ACTA by those nations whose enforcement of intellectual property rights is most in need of improvement? No doubt we will hear choruses of “the EU has rejected this, so why should we sign it?”