As the year draws to a close, EFF is looking back at the major trends influencing digital rights in 2011 and discussing where we are in the fight for a free expression, innovation, fair use, and privacy.

While Internet blacklist bills exploded into the domestic U.S. Congressional scene this year, foreboding international forces are also posing new threats to the Internet around the world. The most prominent of these is the Anti-Counterfeiting Trade Agreement (ACTA), signed by the U.S. in 2011, which would strengthen intellectual property enforcement norms between signatory countries, handing overbroad powers to the content industry to preserve their antiquated business model. ACTA was widely criticized for being negotiated in secret, bypassing national parliaments and the checks and balances in existing international organizations. One of the most disheartening features of this plurilateral agreement[1] is that it creates a new global IP enforcement institution to oversee its implementation.

Eight[2] of the 11 ACTA participating countries have signed the agreement and the battle now mainly lies in the European Union. This week, the Council of the European Union—one of the European Union’s two legislative bodies, composed of executives from the 27 EU member states—adopted ACTA during a completely unrelated meeting on agriculture and fisheries. It is now up to the European Parliament, the EU’s other legislative body, to give consent on ACTA in the coming year. The European Parliament Legal Affairs Committee has discussed the agreement on December 20th, and released its very guarded opinion, summarily stating: “It appears that the agreement per se does not impose any obligation on the Union that is manifestly incompatible with fundamental rights.” This opinion is not surprising, given how the Committee newsletter [doc] published a few days prior spoke highly of ACTA, hinting strongly that it is supportive of its signature.

The agreement requires signatory countries to “endeavor to promote cooperative efforts within the business community” to address copyright and trademark infringement. This could lead to “voluntary agreements” by Internet intermediaries to restrict Internet access and to monitor and censor Internet communications under threat of legislation or criminal sanctions. Read together with ACTA’s broad injunction powers, this will exacerbate existing pressures on Internet intermediaries to monitor, censor and block online communications, and stifle freedom of expression across the globe.

Some of the worst aspects of the previous draft of the ACTA agreement, such as a provision requiring ISPs to adopt a Three Strikes Law,[3] were removed from the U.S. Trade Representative’s final version of the instrument released in May 2011. ACTA suffocates collaborative creativity and innovation, and less explicitly, but just as gravely threatens free speech through provisions that may lead to Internet access restrictions for the “sake” of combating “imminent violation” of intellectual property laws. Worst of all, the secrecy of the negotiations sets a dangerous precedent for future international agreements, in creating powerful trade agreements that both skirt existing international discussions on intellectual property and allow it to go through with little or no input from civil society organizations or the public.

Wikileaks cables have shed some light on internal politics and processes of the negotiations. In late 2010, some documents from 2008 and 2009 revealed that Italian and Swedish representative authorities had reservations over the lack of transparency throughout the negotiations. In February this year, Wikileaks released cables related to ACTA negotiations to La Quadrature du Net (LQDN), a French Internet rights organization which has had some of the most extensive coverage of the Agreement. According to their analysis, the cables provide new insight on the heavy role the U.S. played in the formulation proceedings. LQDN said:

The history of ACTA, as exposed by these US diplomatic cables, shows how an opaque and illegitimate process has led to ill-founded and unbalanced repressive provisions. As democratic representatives start debating over the ratification of ACTA, they should reject ACTA so as to protect democratic values and the rule of law.

Some of the cables also indicated the member states’ explicit intention to avoid collaborating with international organizations on intellectual property, thereby circumventing opposition from developing countries that have questioned the need for additional IP enforcement agreements.

While most of the criticism and demands to obtain access to the negotiations’ documents has come from civil society organizations, some nations have taken the initiative in exposing the gross political treachery in allowing these negotiations to remain so secretive and exclusive. Brazilian officials also oppose the agreement, one calling it “illegitimate”. The Dutch Parliament has refused to take ACTA into consideration until the process becomes more transparent, and texts of the negotiations are allowed to become available to the public. More recently, a top Dutch government minister criticized the European Parliament Legal Affairs Committee when they refused to reveal their opinion to a Dutch citizen who requested to see it, saying that their rejection was “crazy”.

The status of the other unsigned nations, Switzerland and Mexico are still unclear. In early December however, the Swiss executive branch released a report that downplayed the problem of copyright infringement, which may be an indication of shifting political sentiments on IP enforcement and about the agreement at large. Also this month, Taiwan, province of China* released a statement that it would be preparing to join ACTA. Since the agreement remains open to signature until May 2013, it is possible that other states may make a move to join it as well.

In the meantime, civil society groups will continue to be on the frontlines against ACTA, demanding transparency and raising global awareness on the hazards of this agreement. European Digital Rights (EDRi) , has continued to run campaigns against ACTA, and has useful resources on the agreement, including a useful booklet on “Why you should care about ACTA” that is translated into nine European languages. They have also launched a campaign for European constituents to call or email their Parliamentary representatives to express their opposition to the agreement. Foundation for a Free Information Infrastructure (FFII) has also had very thorough coverage on developments on ACTA. FFII has filed and sent numerous requests and letters demanding documents related to its covert negotiations.

We will also be monitoring other plurilateral agreements, such as the Trans Pacific Partnership Agreement (TPP), which contains a chapter on IP enforcement that would have state signatories adopt even more restrictive copyright measures than ACTA. Similarly, negotiations over TPP are also held in secret and with little oversight by the public or civil society. These initiatives, negotiated without participation from civil society or the public, are an affront to a democratic world order. EFF will remain vigilant against these international initiatives that threaten to choke off creativity, innovation, and free speech, and will stand with EDRi, FFII, La Quadrature du Net and our other EU fellow traveller organizations in their campaign to defeat ACTA in the European Parliament in January.

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For ongoing developments and updates on ACTA:

EFF’s International Issue Page on ACTA: https://www.eff.org/issues/acta

European Digital Rights’ (EDRi) coverage here: www.edri.org/stopacta

La Quadrature du Net’s coverage here: http://www.laquadrature.net/en/acta

Foundation for a Free Information Infrastructure’s (FFII) blog on ACTA http://acta.ffii.org/

Twitter hash tags: #ACTA

Twitter accounts:

@StopActaNow

@ffii

@EDRi_org

@laquadrature