ACTA: “The Devil Is In The Lack Of Detail”

Max Smolaks,

MEP David Martin expects the vote to go 2:1 against ACTA, and explains why

Industry experts agreed that protecting intellectual property is essential to the UK economy last week, at a seminar dedicated to the Anti-Counterfeiting Trade Agreement (ACTA) held at the Europe House in London. However, the opinions were split on whether ACTA was the right answer to the copyright problem.

The controversial agreement is widely anticipated to fail in a vote within the European Parliament; European Commissioner for the Digital Agenda Neelie Kroes admitted this much two weeks ago. However, alternative legislation designed to protect intellectual property is already being discussed in Brussels, and to be successful, it must not repeat the mistakes of ACTA.

Member of the European Parliament David Martin thought the agreement failed when it decided to combine counterfeiting of real goods with online piracy, while director of the Alliance Against IP Theft Susie Winter couldn’t see any problems with ACTA and dismissed the Europe-wide protests as a storm in a teacup.

Jim Killock, executive director of the Open Rights Group said the protesters were representing the mood of the public, and had plenty of reasons to take to the streets.

Diagnosis

ACTA was drawn up as an agreement between the EU and 10 other countries, including the US, Japan and Australia. Before it comes into effect, six of the 11 entities have to ratify the document. The EU cannot do that until the EU parliament gives its consent, and everyone agrees this consent will not be given.

The opponents of ACTA say that its problems started through the very process of negotiation, that it was done “behind closed doors”, kept away from the general public and interested groups.

However, David Martin explained that trade agreements, by their nature, are “behind closed doors” negotiations. “We cannot negotiate on trade matters in public. But these negotiations must be reported to the European Parliament, that’s a legal requirement,” he said. And the parliament was largely kept out of the loop.

Martin called the aims of ACTA legitimate and desirable, underlining their importance for the UK economy. “We live in a region that does not find itself well—endowed with natural resources. We are a region that I hope will not want to compete on the basis of low wages. So we have to compete on the basis of our intellectual property, inventions and innovations.”

“The problem with ACTA is it deals with two very different kinds of products in an almost identical way – physical and virtual products. I think the biggest mistake was to combine these two in the same treaty,” said Martin. The problematic subjects include the definition of commercial exploitation, the amount of damages that can be requested through ACTA and the increased responsibilities and costs for ISPs. “The devil is in the lack of detail,” he later added.

Although ACTA does not say that ISPs will have to act as an Internet police force, these functions are certainly implied. Under the agreement, ISPs would have a greater responsibility to monitor the use of their services, and take action against unlawful users. “I don’t think we should have legal obligations for ISPs,” said Martin. “We have a provision already that enables right holders to go through the legal system to take infringing websites down, and I think that’s the way it should be.”

“My estimate is the vote will go 2:1 against ACTA. I don’t see the agreement getting through the European Parliament as things currently stand.”

According to Susie Winter, IP is essential to the creative industries in the UK. This sector delivers 1.5 million jobs, and contributes over £36 billion to the UK economy. IP is also the basis for the £16 billion that companies invest annually into building brands in the UK.

”IP holders are losing out because of the lack of re-investment, caused by levels of commercial-scale piracy that is going on. Clearly, greater action is needed,” said Winter. She also pointed out that ACTA would take the level of IP protection businesses expect in the EU to other countries.

Responding to those who think ACTA would infringe on citizen’s rights, Winter said: “To my mind, there’s nothing in ACTA that seeks to restrict how individual citizens use the Internet. It’s about businesses being set up to facilitate infringement of other people’s intellectual rights, taking something for nothing, with original creators getting no return.”

Second opinion

In the opinion of Jim Killock , executive director of Open Rights Group, exporting ACTA to other countries is a terrible idea. “One of the fundamental questions is whether it is right for a small number of largely developed nations to create a costly model for enforcement that is then exported to the developing nations,” he argued.

“Some African nations, South American nations might have to choose between enforcing IP rights or developing their healthcare, education, or perhaps investing into the police force to tackle corruption. These countries themselves don’t have large investments in IP.”

All panellists agreed that after SOPA and PIPA, ACTA had taken on a new, symbolic meaning. But a rejection of ACTA should not be seen as the European Parliament rejecting intellectual property. “What struck me is some of the loudest opponents of ACTA in the Parliament are actually strong copyright defenders,” said Martin. In the case ACTA is rejected, a different EU copyright protection legislation is sure to appear.

”The campaign against ACTA was led by academics and civil organisations who are concerned about the way that this treaty was skewed by some very powerful commercial interests,” said Killock in defence of the protest movement.

“The forces behind ACTA got in trouble because they went against the interests of a much wider group of people. They were pushing too hard and too fast against people who did not like what they were hearing and seeing.”

Turning directly to Winter, he continued: “Nobody is against you or your industry’s objectives. Find something reasonable to propose, and stop blaming people who are complaining about your PR operation.”

Twitter was on fire during the seminar. The organisers had the unfortunate idea of putting a huge screen behind the panellists, broadcasting the tweets related to the #ACTALondon hashtag. It turned into a heated discussion in its own right, often completely hijacking the attention of the audience. There were over a 100 tweets made during two hours of the seminar, complete with accusations of “trolling” and “leftie rants”.

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