Is ACTA a foregone conclusion or will it meet SOPA's fate?

Rich Fiscus
3 Feb 2012 16:47

With all the furor over SOPA and PIPA in recent months, the signing of the ACTA trade agreement last October by the US, Japan, and a handful of other countries has largely been ignored.
The Anti Counterfeiting Trade Agreement resulted from efforts by the entertainment industry to mandate copyright law via international agreement. It was written in secret, with the input of movie and recording industry lobbyists, but with the general public provided information only via leaks from various parties to the negotiations.

According to US President Obama, ACTA isn't actually a treaty, and therefore requires no ratification by the US Senate. In the EU, the process of approving ACTA is now in full swing. Thanks in part to the significant publicity generated by SOPA and PIPA protests, officials from several EU governments are coming under fire for supporting ACTA.
Last month representatives from all but five of the EU's 27 member states signed ACTA. The holdouts were Germany, the Netherlands, Estonia, Cyprus and Slovakia. This resulted in thousands of Polish citizens taking to the streets in protest. The next day AP published a picture of more than 20 Polish legislators staging their own protest by covering their faces with Guy Fawkes masks.

Poland isn't the only place where the public is pushing back against ACTA either. As ambassador to Japan, where all ACTA signings have taken place, Helena Drnov?ek Zorko signed the treaty on behalf of Slovenia. She was so inundated with questions about the signing that she felt compelled to publicly apologize for her involvement.

When her comments received serious attention outside Slovenia, she also provided an English translation of her statement, which is definitely worth reading in full. She took responsibility for failing to live up to her responsibility as a Slovenian citizen, and expressed regret at her own failure to question ACTA's legitimacy:

I signed ACTA out of civic carelessness, because I did not pay enough attention. Quite simply, I did not clearly connect the agreement I had been instructed to sign with the agreement that, according to my own civic conviction, limits and withholds the freedom of engagement on the largest and most significant network in human history, and thus limits particularly the future of our children. I allowed myself a period of civic complacency, for a short time I unplugged myself from media reports from Slovenia, I took a break from Avaaz and its inflation of petitions, quite simply I allowed myself a rest. In my defence, I want to add that I very much needed this rest and that I am still having trouble gaining enough energy for the upcoming dragon year. At the same time, I am tackling a workload that increased, not lessened, with the advent of the current year. All in line with a motto that has become familiar to us all, likely not only diplomats: less for more. Less money and fewer people for more work. And then you overlook the significance of what you are signing. And you wake up the following morning with the weight of the unbearable lightness of some signature.

First I apologised to my children. Then I tried to reply to those acquaintances and strangers who expressed their surprise and horror. Because there are more and more of them, I am responding to them publicly. I want to apologise because I carried out my official duty, but not my civic duty. I don?t know how many options I had with regard to not signing, but I could have tried. I did not. I missed an opportunity to fight for the right of conscientious objection on the part of us bureaucrats.

But this was more than an apology for failing her countrymen. She also sought to shine a light on the politicians who were responsible for ACTA negotiations, and ultimately made the decision to sign it, after which they remained silent as the blame fell to her.

There has been a demonization of ?some sneak?, that is me, who in far-off Tokyo secretly signed something on her own initiative. This was heard in the Slovenian parliament and in the Slovenian media, and it is spreading on the web. It is dangerous particularly because it conceals the responsibility of those who had the power to decide, and did in fact decide, that Slovenia would be a signatory of ACTA. This was decided by the Slovenian government and by the parliamentary committee for EU matters, and before that, Slovenia was for quite some time involved in coordinating the agreement. All this was done with too little transparency, judging by the outraged responses that have appeared following the signing. Back then, the Slovenian media did not demonise this decision to the same extent as they now demonise my signature. This I consider very dangerous for the continuous (non-)development of democracy in Slovenia. At the same time, this means that I was not the only one whose attention slipped, that we, as Slovenian citizens, neglected our civic duty. And that there may be a little known party in the Slovenian political space that missed an excellent opportunity to gain votes in the recently concluded electoral struggle.

Finally, she urged the public to participate in a protest tomorrow in Slovenia's capital city of Ljubljana, writing:

Let my example be a cautionary tale of how swiftly we can make mistakes if we allow ourselves to slip. And if nothing else, we then sleep very badly.

Worldwide debate over ACTA
Unlike SOPA and PIPA, the fate of ACTA does not rest solely in the hands of the US. Citizens of other countries, largely marginalized in the annual debates over US antipiracy legislation, find themselves in a very different position with respect to ACTA. While two successive US presidents have effectively managed to exercise sole authority over ACTA in the US, opponents elsewhere appear unwilling to accept ACTA without a fight.

There is a growing movement to stage a unified day of protest against ACTA a week from tomorrow, on February 11. You can find extensive information about planned protests in various countries on the website of Access, a group working to promote Internet freedom. They are compiling a list of events, primarily being organized in EU member states.

A related protest is being planned in Canada, whose government signed ACTA last October. However, no protests are listed in other countries whose leaders signed that day. Of particular note is the apparent lack of activity in the US and Japan, whose governments' were the driving force in the secret ACTA negotiations. There is also no indication of a well organized movement in Australia or New Zealand.

On a more official level, Dutch MEP Marietje Schaake reached out to the Reddit community prior to last month's European signing event with details about parliamentary opposition to ACTA. Besides urging EU residents to contact their own MEPs, she announced plans to hold a hearing in April where concerns about ACTA will be heard, and said it will be webcast for public consumption. She even offered additional information on the hearing via her official email address -

In the US, Senator Ron Wyden has been challenging President Obama's authority to sign ACTA as an executive agreement, noting that intellectual property law is delegated to Congress in the US Constitution. When his general request to the White House was answered in vague terms by the USTR, who dodged the question of subject matter authority entirely, Wyden sent another request directly to the US State Department asking for a detailed opinion about what international obligations ACTA imposes.

There is also an active petition on the White House's We The People page which details the constitutional question and asks President Obama to submit ACTA to the Senate for ratification as a treaty. A White House response to a pair of anti-SOPA/PIPA petitions last month was the first sign of opposition to some of the worst provisions in those bills.

Educating yourself about ACTA
If you would like to learn more about ACTA, you can download the full text (in PDF form) from the European Commission's website in every EU language.

A legal analysis of ACTA's legal ramifications was produced last year by European Parliament's Legal Service, it was handled just as secretively as the treaty's negotiations. A request from the non-profit Foundation for a Free Information Infrastructure (FFII) requesting the text of that analysis was denied, and FFII's complaint that such secrecy violates EU law ignored.

What has been released is a "fact-sheet" from the European Commission (link to PDF) expressing support for ACTA. However, a French Internet freedom advocacy group called La Quadrature du Net has published a rebuttal which argues just the opposite. You can find the full text of that document below.

Debunking the EU Commission's "fact-sheet" on ACTA

In the US, there is a little more analysis available, although it dates back to a previous ACTA draft. It was perfomed by the Congressional Research Service. Although CRS refused to release it to the public in any form, Senator Wyden did make a redacted copy available, which you can also read for yourself, along with his questions for the State Department.

The CRS letter is primarily instructive for understanding the open ended nature of ACTA, making it ripe for abuse by entertainment industry lobbyists looking to ensure the only changes to copyright law are stronger enforcement. By locking the US into a particular regime of IP laws, ACTA is designed to erect hurdles to the public taking back any IP protection granted in the past.

CRS Analysis of October, 2010 ACTA draft - redacted

Senator Ron Wyden Asks State Department To Explain ACTA In The Context Of International Law

At this point, protests against ACTA appear to have had little effect on national governments. Of course, the same could be said for SOPA and PIPA protests at the beginning of January. Less than a month later both bills are stuck in legislative limbo.

While it remains to be seen if the same sort of organized effort will be mounted against ACTA, world leaders would be foolish to ignore the momentum those protests seem to have generated or the capabilities of web communities to mobilize people in large numbers.

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