Every major country in the ACTA negotiations claims that its own laws will remain unchanged by the treaty. But without changing a word of domestic law, ACTA can still be dangerous to a country's — or a continent's — economy. This week at Deeplinks, we've asked guest bloggers from around the world to give their perspective on the trade agreement. Today, giving the view from the heart of the European Union, is Ante Wessels, analyst for the Foundation for a Free Information Infrastructure, a group best known for their work in Europe's debate over software patents.
Negotiations on the highly controversial Anti-Counterfeiting Trade Agreement are now in mid-flow in Guadalajara, Mexico. Topics for this round of closed negotiations will be civil enforcement, border measures and enforcement procedures in the digital environment.
After the last round of negotiations in November, the secret EU analysis of the Internet chapter (as proposed by the US) was leaked to the press. This document suggests the EU would prefer ACTA to mirror existing EU legislation.
Questioned in January by the European Parliament, Neelie Kroes, now Commissioner for the Digital Agenda, confirmed this. She said "There has been a first proposal tabled by the United States. For the Commission, the objective of the negotiations is that our international partners guarantee the same level of protection of IP rights as the EU currently applies. There will be no harmonization via the backdoor. We stick to the line they have to move to our side and that's it."
What would be the outcome of an ACTA where EU IP legislation is exported to the world? One troubling possibility is that our most controversial IP regulations would be frozen in ACTA with no obvious way to reform them. The EU is still in the middle of an ongoing political debate over the future of intellectual property enforcement, including how best to handle patents, a discussion that the Foundation for a Free Information Infrastructure is intimately involved in. But if these current laws were to be established in an international agreement, they would be effectively unfixable, in the EU or elsewhere.
Europe's Flawed Legislation
"Exporting EU-style enforcement legislation to foreign trading partners is an (un)official goal of EU policy", Professor Annette Kur of the Max Planck Institute in Munich, remarked in a presentation last December. She added: "If and where legislation is (partly) flawed, export is not a recommendable option."
If the European governments and Commission have it their way, we believe ACTA will look like the recently negotiated EU-Korea free trade agreement. This agreement proposes to apply harsh anti-counterfeiting measures against patent infringements, which as most readers here will know, are often complex, of unclear validity, and require argument in a civil court.
An FFII analysis of the agreement showed that the free trade agreement contained drastic civil and border measures, including injunctions, seizures, destruction of goods, and the removal of online repositories. Applied to patents, we believe these could well threaten companies that produce software, companies that use software, and free software projects alike. And the "safe harbours" for online hosting providers proposed by the agreement are no safe harbours at all. We believe these are the kind of regulations that Europe is proposing exporting to the world.
Traditional models of IP rights are being challenged world-wide. With a few mouse-clicks anyone can copy whole libraries of works. Children record, download, mix and publish music and video. Twitter and blogs spread news. How to best deal with all these new developments is still unclear. Yet, in this moment of great uncertainty, governments gather to impose and freeze broken, old-school measures on these new developments. They do so to protect old interests against innovation. And they do so in secret.
On Friday, delegations have set aside just one hour to discuss transparency. It is clear what should happen: stop these negotiations until all documents are published.