Time to bury ACTA once and for all
3:19pm | 16 March 2012 | by Raegan MacDonald, English
Since officially acquiring the ACTA dossier in February 2012, the Parliament has begun public discussions on the controversial agreement. Over the last several weeks, there has been a noticable shift of power, proving that the wave of criticism -- from European citizens, civil society, academics, and European policy makers -- has altered the course of the ACTA debate. While there are still obstacles ahead, the outcome of the ACTA Workshop on March 1st has shown us that victory could very well be close in the horizon.
The workshop was hosted by the INTA chairperson, Vital Moreira, which intended to bring together academic and legal experts to examine the issues around ACTA, including its impact on civil liberties. The tension at this overly crowded meeting, was palpable. However, despite the magnifying glass that has been placed upon European institutions to dissect and examine ACTA, one look at the agenda quite clearly indicated that the panels were inadequately balanced, where a member of the International Trademark Association (INTA) was speaking on ACTA’s impacts on fundamental rights. [Summary of Tweets during #ACTAws here]
The saving grace however, was Michael Geist, a well known Canadian IP scholar, who expertly summarised the problems with ACTA, from process, to content, to lack of effectiveness, in a few minutes.
Mr. Moreira, chair of the INTA committee and of the conference, opened the event with a celebration of openness and transparency in the European Parliament, which is “second to none.” However, the warm applause that Geist received after his presentation drove the chairperson to warn the audience that, “you are not here to protest,” threatening on more than one occasion to have “demonstrators” physically removed from the room. See this clip on YouTube: “The ACTA Hearing: Transparently Absurd”.
Commissioner Karel De Gucht, who has been leading the charge in the Directorate-General the Internal Market and Services (DG Markt) on the Agreement, delivered the same tired story and the same tired myths that we’ve heard the past few years. Notably, he (again) tried to undermine the credibility of opponents of ACTA, saying their concerns are based on “misinformation.” It is worth taking a moment to reflect upon whose credibility he is attempting to undermine. The Organisation for Security and Co-Operation in Europe has voiced concerns over ACTA’s potentially “detrimental effect on freedom of expression and free flow of information in the digital age.” Peter Hustinx, the European Data Protection Supervisor, worries that ACTA’s broad scope and ramped up criminal sanctions are not proportionate for the goals it is attempting to address.
The European Economic and Social Committee also stands strong against the Agreement, specifically, the way in which the agreement is “heavily biased in favour of content distributors,” and undermines the fundamental rights of citizens.
The Party of European Socialists, led by President Sergei Stanishev, are strongly opposed to ACTA, as it is “wrong in both content and process.” Not to mention the work that civil society organisations, from Oxfam, to Raporteurs Sans Frontieres, Amnesty international, to Access, to European Digital Rights, and so on, who have consistently brought forward our concerns regarding the implications ACTA will have for fundamental rights, access to generic medicines, innovation, and international trade.
We could go on, but we think you get the picture.
It was announced by MEP David Martin, the rapporteur in the INTA committee for the ACTA dossier, that the EP may also refer ACTA to the CJEU. [For more analysis on the referral process, please see the FAQ on the Commission’s referral of ACTA to the CJEU, compiled by Access and EDRi.
There is much doubt about the reasoning and the motives behind the EP referral. Firstly, under the Treaties, the parliament doesn’t have any more flexibility in terms of what it can ask the Court. Apart from the preamble, the question will be the same: whether or not ACTA is compatible with the Treaties. Due to the vagueness of the ACTA text, it is not guaranteed that the CJEU will find it is not in line with “primary” law (the Treaties).
Pro-ACTA advocates hope that this delay will not only serve to cool down the controversy around the agreement, but will open up an avenue to introduce the possibility of “conditional consent” (as alluded to in the INTA study on ACTA, which states that “conditional consent would be an inappropriate response from the European Parliament”) through an initiative led by MEP David Martin (S&D). Martin plans to develop an “interim report” -- based on the opinions of the various committees working on ACTA -- set to be delivered to the Commission sometime in the fall.
However, Martin’s party (the Socialists & Democrats), who are mostly against ACTA, has recently decided to reject a referral, and to go for the vote. Access supports this and urges the Parliament not to refer ACTA to the CJEU, to abandon plans to produce such an “interim report”, and to opt rather to continue deliberating on the Agreement, leading to a swift and prompt NO vote by the Parliament.
As it currently stands, here is a timeline for the road ahead (courtesy of EDRi). Mind you, it is subject to change in the next few weeks as the Parliament deliberates on whether or not to refer ACTA, and if it will indeed produce the interim report resolution:
- March 2012 to September 2012 – Discussions in European Parliament committees
- September 2012 – Interim Parliament resolution with implementation questions to the Commission.
- October/November 2012 – Non-binding response from the Commission indicating that it will implement IPRED along the lines requested by the Parliament (whose term of office ends in 2014)
- November/December 2012 – Launch of legislative proposal revising IPRED
- 2013/2014 – Ruling from the European Court of Justice
- Consent vote of the European Parliament - immediately after the decision, if the Court rules ACTA to be in line with the Treaties.
Pro-ACTA policymakers are buying time, and attempting to collect more ammunition to undermine the progress that has been made against the Agreement. Currently, it is the ALDE group in the EP that is most in favour of referring ACTA to the CJEU. Digital rights advocacy groups, like German Digitale Geselschaft, are organising a “call your MEP” campaign -- we encourage you to pick up the phone and tell your MEP to send ACTA straight for a “NO” vote!