ACTA, its rejection and the political battle on online copyright

The Anti-Counterfeiting Trade Agreement is an international treaty that sought to establish international standards and common rules to tackle large-scale infringements of intellectual property rights (i.e. copyrights, trademarks, patents, designs and geographical indications).¹⁶¹ Discussions about this agreement started informally in 2007, whereas formal negotiations were launched in 2008. After seven rounds of negotiations, the agreement was finalised in November 2010.¹⁶² As stressed by the ‘Trade’

161 See European Commission, What ACTA is about, DG Trade (http://trade.ec.europa.eu/doclib/docs/2012/january/tradoc_149003.pdf).

162 The parties of the agreement were Australia, Canada, the European Union, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea and the United States. The treaty was negotiated and concluded outside the institutional and legal framework established by the World Trade Organisation (WTO). Considering that all parties are WTO members and, as a result, are bound by the TRIPS Agreement (whose Part III includes provisions on enforcement of intellectual property rights), ACTA would have been a ‘TRIPS-plus’

instrument (i.e. an agreement providing more stringent rules and obligations on enforcement among the contracting parties). The text of the TRIPS Agreement is available at www.wto.org/english/tratop_e/trips_e/t_agm4_e.htm.

Directorate General of the European Commission (which negotiated the agreement on behalf of the EU) the adoption of ACTA would have placed intellectual property rights holders in a position to benefit from improved access to justice, customs, and police to enforce their rights against counterfeiters or infringers in all those countries where the agreement would have entered into force.

With specific regard to online copyright enforcement, ACTA pursued the objective of making the civil and criminal enforcement measures referred to in the agreement available also in the digital environment. Such measures should have included expeditious remedies to prevent infringement and remedies that constitute a deterrent to further infringements.¹⁶³ The provision of Article 27(2) explicitly obliged each contracting party to apply enforcement procedures to infringement of copyright and of rights related to copyright over digital networks, which may include “[…] the unlawful use of means of widespread distribution for infringing purposes […]”. At least in the final version of the agreement, the same provision specified that enforcement procedures should have been implemented in a manner that avoided the creation of barriers to legitimate activity, including electronic commerce and, in compliance with each party’s law, preserved fundamental principles such as freedom of expression, fair process and privacy.¹⁶⁴

All parties, with the exception of the EU, Switzerland and Mexico, signed the agreement in December 2011. The EU and 22 EU member states signed ACTA in Tokyo in January 2012.¹⁶⁵ After that step, the European Parliament started its consent procedure, which ended in early July 2012 with the rejection of the treaty by the plenary assembly, following the negative recommendations made by all parliamentary committees that had previously examined the treaty (i.e. International Trade, Civil Liberties, Justice and Home Affairs and Legal Affairs).

Before the Parliament vote, the signature of the treaty had triggered an unprecedented and politically broad debate between its supporters and opponents that resulted in the resignation in protest of the Parliament’s

163 See ACTA, Art. 27(1).

164 Ibid., Art. 27(2).

165 ACTA needed to be signed and ratified also by EU member states, on a separate basis, since the agreement embodied criminal enforcement provisions (i.e. criminal law is an area of shared competence between member states and the EU).

appointed chief investigator (French MEP Kader Arif) as well as widespread protests across Europe that strongly influenced and de facto paralysed the treaty’s ratification process at national level. The newly appointed rapporteur (British MEP David Martin) recommended against the approval of the treaty concluding that the intended benefits of the agreement were far outweighed by the potential threats to civil liberties.

Previously, in February 2012, the European Commission had referred ACTA to the CJEU seeking its legal opinion on whether or not this agreement harmed any of the fundamental rights of European citizens. This referral was eventually withdrawn in December 2012.

The Task Force discussion briefly touched upon the various negative factors that led to the political rejection of a treaty that the European Commission had negotiated for more than four years. A largely insufficient inter-institutional dialogue certainly played a crucial role in determining the bad outcome of the ratification process as well as a poor perception and insufficient communication of the potential benefits of the treaty. Secrecy in negotiations that had been developed outside the framework of the WTO and concerned an international agreement that, at least for a time, would seem to embody an obligation for contracting parties to adopt (or to strongly encourage the voluntary adoption of) graduated response regimes triggered the institutional reaction of the European Parliament. In a resolution approved in March 2010, the Parliament openly contested the lack of transparency in the ACTA negotiations until that time, asking the Commission for an assessment of the potential impact of the new treaty on fundamental rights such as freedom of expression and the right to privacy.¹⁶⁶ The resolution advocated that the new agreement should not have made the implementation of so-called ‘three-strikes’ law mandatory and that any sanctions implying disconnection of users from access to the Internet should have been made subject to prior examination by a court. In April 2010, in response to the resolution, the Commission made a draft version of the treaty publicly available, for the first time.

What was unanimously deemed to be an even more decisive factor in the political debate on ACTA was a new and unprecedented activity of protest and lobbying undertaken by activists and, more generally, Internet users through open letters, online petitions and emails addressed directly

166 See European Parliament Resolution of 10 March 2010 on The Transparency and State of Play of the ACTA Negotiations, OJ 2010/C 349 E/10, 22 December 2010.

to members of governments and of the European and of national parliaments. On the grounds of a draft of September 2009 that had been leaked, and embodied an enforcement chapter specifically targeted at the Internet, opponents of the treaty strongly warned that its approval might have stifled innovation and, even more importantly, would have threatened online freedom of expression and user privacy. That draft seemed to oblige ACTA contracting parties to follow US law in making the liability exemptions for ISPs conditional on the implementation of policies aimed at discouraging unauthorised storage and transmission of infringing content, like clauses in subscription contracts enabling also graduated response schemes.

By coincidence (at least as far as timing was concerned), this unprecedented wave of protest and lobbying by individual users, civic society organisations – with the support of ISP industry associations and of the largest Internet companies – developed and ideally extended at international level an equally prominent (and successful) political battle that took place when the US sought to adopt the Stop Online Piracy Act (better known as ‘SOPA’). Technically speaking, SOPA had little to do with ACTA since it was a legislative proposal aimed at allowing under US law enforcement measures that are already been contemplated at EU level and/or in most of the EU member states.

The new bill sought to expand the ability of US law enforcement to fight online trafficking in unauthorised copyrighted materials. Provisions included the requesting of court orders to bar advertising networks and payment facilities from conducting business with infringing websites, and search engines from linking to the websites, and court orders requiring ISPs to block access to websites. The law would have expanded existing criminal laws to include unauthorised streaming of copyrighted content, imposing a maximum penalty of five years in prison. At the time of the discussion of SOPA in the US Congress, a mobilisation of Internet users, online intermediaries and content platform devisers culminated in a ‘blackout’

(i.e. a switching off) of approximately 7,000 websites (including top websites like Wikipedia and Reddit) seeking to raise awareness about the risks that the new law would have entailed (i.e. tension with the basic functioning of the Internet, risks of online censorship, etc).

As briefly recalled above, ACTA was officially rejected since, along with intended benefits, unintended consequences might have emerged, namely a potential limitation to civil liberties stemming from the interpretation of excessively vague provisions by each contracting party.

Interestingly, during the political process that led to the rejection of ACTA in Europe, the fact that, at least in its latest (and diluted) version, Article 27 explicitly preserved legitimate activities such as electronic commerce and the protection of fundamental rights (such as freedom of expression, fair process and privacy) was not deemed to be a sufficient guarantee against the potentially ubiquitous enforcement of copyright in the digital environment. The Task Force participants widely agreed that, in light of the above-mentioned political and legal objections, policy- and law-makers should aim at enacting clear and sufficiently precise legal texts leading to foreseeable consequences. This approach would be of great importance for policy-makers to be able to face objections related to unintended effects of online copyright enforcement.

More generally, the discussion about ACTA clearly evidenced that making civil enforcement measures work in compliance with the protection of fundamental rights and civil liberties will be the main challenge for law-makers in the close future. Such challenge will be even bigger in a context, like the EU, that is politically and legally fragmented and where national courts still grant different types of online enforcement measures and evaluate the potential conflict between copyright and human rights according to distinct criteria and priorities. The fact that the European Parliament voted against an international treaty that would not have eventually required the enactment of new EU law provisions clearly revealed the existence of a political bias against the actual system of copyright enforcement measures from a purely intra-European perspective.

Considering the conclusion of the saga on ACTA, the enactment of further EU legislative measures on copyright enforcement is very unlikely, at least for now. Meanwhile, it has to be seen whether and how the increasingly relevant case law of the CJEU will refine the interpretation of the existing legislative framework. For example, it is still unclear whether, and under which circumstances courts can issue injunctions against online intermediaries in order to oblige them to cooperate with rights-holders in activities of online copyright enforcement.