After the well-received ACTA rejection by the three first committes in the European Parliament, things are looking hopeful to prevent this middlemen-regime treaty from ever becoming reality. But we’re not there yet; here’s where we are.

The ACTA agreement, having been negotiated in secrecy for several years, have been deliberately kept from the eyes of the (voting) public during the negotiations. The idea is to create legislation through the back door, where only rich monopoly-defending corporations get a say, against the interests of the people – and particularly the poorest people, as ACTA deliberately conflates legally-made generic medication with counterfeit, potential fatal medication.

It’s even been so bad that corporations have received seats at the negotiation tables, but the public has been kept out. In some cases this has gone to absurd lengths – like when the Swedish copyright hawk Stefan Johansson, who led the EU ACTA negotiations during the Swedish EU presidency, deliberately tried to keep the governments of the United Kingdom and Italy in the dark about a “three strikes” scheme. (Stefan Johansson works in the Swedish Justice department, and allegedly also drafted the infamous Swedish IPRED law.)

Let’s look a little more in-depth on the ACTA game as a whole, as we approach the key showdown in the European Parliament.

Background

ACTA is being marketed as “TRIPs Plus”. Thus, to really understand ACTA, we must first look at the TRIPs agreement, as ACTA uses and builds on the definitions of TRIPs. If you don’t know the background to this agreement, it will probably sound like the worst conspiracy theory you ever heard.

With the decline of commercially viable industrial production in the United States in the mid-1970s, and specifically the successes of Toyota, a number of committees in the US set out to redefine global economy to keep the United States on top of the global economy, regardless of whether it produced anything. Through a series of events, this effort came to be spearheaded by Edmund Pratt, the then-CEO of Pfizer, leading the Advisory Committee on Trade Negotiations.

The effort was to redefine trade through a series of trade agreements portrayed as “free trade”, but factually lopsided the terms to make sure that the United States stayed on top. The idea was that if the United States can’t produce anything of value, perhaps it can rent out drawings and get finished products in return, and portray it as “free trade” to get away with it. Thus, copyright and patent monopolies would be the key to maintaining United States global economic dominance, rather than actually producing anything.

The group went to the UN WIPO, the United Nations body responsible for maintaining the Berne Convention, to create this scheme. (The United States joined the Berne Convention at this time for this purpose.) WIPO wouldn’t have any of it, and basically threw them out on the street. So instead, this group hijacked an existing body – the GATT, General Agreement on Tariffs and Trade – and proposed that TRIPs would replace its current governing agreement. That scheme worked, and GATT was renamed the WTO, World Trade Organization.

Thus, TRIPs is essentially the US copyright monopoly and patent monopoly holders – think Big Pharma, RIAA and Hollywood in collusion – getting their wet dreams masqueraded as “free trade” or “property”, which the US government supported, as this “free trade” means a rent revenue from the rest of the world (as of 2008, measuring 68 billion USD yearly).

The copyright and patent monopolies have absolutely nothing to do with morals, stealing, or property – it is an ongoing trade war, plain and simple.

(For those eager for details, I can recommend the book “Information Feudalism: Who Owns The Knowledge Economy?” by Peter Drahos and John Braithwaite, which is a bit heavy at times, but goes into excruciating detail about who did what and why to bring about the TRIPs agreement.)

ACTA is the followup to TRIPs. As such, it ratches up the lockdown of copyright and patent monopolies yet another notch to benefit the original creators of the TRIPs agreement, namely Hollywood, RIAA, Big Pharma, and the US Trade Representatives – at the expense of everybody else.

To take two tangible examples of how it does this, the agreement deliberately conflates counterfeiting and piracy, keeping on associating those words with one another as if “counterfeiting and piracy” was one term – meaning that it treats fake, fatal medication on the same terms as citizens sharing culture and knowledge, which makes no sense at all from a public-interest policy standpoint. It’s even worse, actually: it treats legally-manufactured generic medicine destined for the third world, manufactured in India and similar, as if it were counterfeit fake and fatal medicine. It makes no difference between medicines that are “legal to manufacture elsewhere but patent-monopolized here” and “counterfeit and dangerous to public health”. We’ll be returning to this as we petition the Europarl DEVE committee later in this article.

Global status and impact

ACTA is supposed by name to be a treaty against counterfeiting – and yet, none of the countries typically producing counterfeit goods are parties to the treaty. (This is actually no surprise, once you know the TRIPs strategy of gradually ratcheting up the bar multilaterally.) In any case, to be remotely effective, any treaty on the copyright and patent monopolies that aspire to be global must have at least two of the three world’s largest economies in it: The European Union, the United States, and China (listed in descending order of economy size).

All trade treaties depend on their enforceability, and this is typically done through trade sanctions (or, in rare example cases, with military means). The mechanisms of trade sanctions mean that larger economies can hurt smaller economies disproportionately – when the United States issues a trade embargo against Cuba, it is devastating to Cuba, but barely makes a scratch in the economy of the US. Thus, if the United States disagree with European Union policy, trade embargoes from the US will harm the United States just as hard as (or even slightly harder than) the European Union. As a result, the EU cannot be punished for choosing to not adhere to this treaty: trade sanctions won’t work.

Therefore, with the US pushing the agreement, and China not being part of the negotiations, it lives or dies with the acceptance of the European Union. It doesn’t really matter that Japan, Australia, and a couple of other smaller countries have signed it – if the European Union nixes it, it is effectively without force, having been designed to be a global treaty but failing to achieve that level.

Thus, the ACTA treaty as a whole lives or dies with the vote on the European Parliament’s floor on July 2-5.

Legal status in the EU

In the European Union, the ACTA treaty was introduced under so-called Nice rules (now replaced by Lisbon rules) as a mixed agreement. This means that the EU cannot decide on ACTA at only the European level, but approval from the parliaments of all member states and the European Parliament is necessary for the treaty to be ratified in the European Union. Thus, we are – theoretically – looking at required approvals from 28 parliaments: the European Parliament and those of the 27 member states.

However, it is not quite as simple as one country being able to say no and get away with it, torpedoing the entire treaty. Eurocrats have already started investigating legal ways of circumventing such national parliaments that are obstinate and refuse to approve this treaty just because it goes dramatically against their interests.

There appear to be several avenues to get around individual countries that insist on making democratic decisions, in particular since the Nice rules of operating in the EU have been replaced by the Lisbon rules – essentially a new European Union Constitution. Which it was also originally called, when a few member states refused to approve it, by the way: A European “constitution”. As already noted, the Lisbon treaty is in effect now, despite the fact that a few countries refused to adopt it in their referendums. That gives you an idea of what can happen to ACTA unless it is stopped on a broad front and in full force.

Yet other eurocrats are investigating the possibility of having ACTA take effect on the EU level only, ignoring the parts that the national parliaments would have a say about – which, under the Lisbon treaty, are essentially just some specifics of criminal sanctions.

Actions by national parliaments in Europe

This brings us to what has happened so far at the national level. The dominoes started to fall with Poland announcing that it put ratification “on hold” for the time being. Poland was followed by a number of other member states, but once Germany said the same thing, ACTA was effectively on hold. Poland and Germany together cannot be overruled; we’re talking a large enough fraction to make it politically impossible to steamroll over them by trickery.

The latest such action was from the Dutch parliament, which went one step further and requested the Dutch government not to sign ACTA, period, regardless of what other bodies think. However, this request has no effective binding force on the Dutch government – but this action does send a strong signal that the same parliament will refuse to vote to ratify ACTA if the government signs it, thus making it pointless for the Dutch government to proceed with the process. Parliament’s ratification is, as we have already seen, required for adoption.

(The Mexican senate pulled the exact same stunt about this time of last year, under the exact same conditions: effectively telling the administration that the Mexican Senate will refuse to ratify ACTA, so don’t bother signing it.)

However, as we have also seen, the Netherlands can and will be steamrolled over by eurocrats if they are the only ones holding up the worldwide adoption of ACTA, democracy be damned.

Ongoing political trickery

As always in the European Union, there is no shortage of politicians trying to win the battle by being better at political trickery, rather than being better at arguing your cause.

Marielle Gallo on the Legal Affairs committee (JURI) drew first blood in this regard, as she was appointed to champion the issue for JURI and write a draft opinion – she disallowed amendments to her resulting paper that essentially said “love and embrace ACTA”, forcing the JURI committee to adopt or reject it as a whole. Normally, this would mean that she would have forced JURI into either having a positive opinion about ACTA, or no opinion at all. (Her paper was rejected, and it had previously been agreed that a rejection should be interpreted as a recommendation to reject ACTA, in counter-trickery.)

Looking at the votes in LIBE (Civil liberties committee), there was a lot of similar trickery from the EPP party group, as they tried to disqualify amendment 42 from the voting process – an amendment to the LIBE opinion that added an outright recommendation to reject of ACTA. This didn’t work out the way EPP had intended, so in the end, the EPP party group abstained from voting in LIBE. (It remains to be seen how this abstention will affect the vote on the floor.)

Several amendments try to soften up the perception of ACTA by “calling for clarifications” by the European Commission and other bodies. This is one of the worst kinds of trickery – trying to give the impression that the meaning of ACTA can be altered, when it cannot. Unsurprisingly, these amendments also come from the proponents of the monopolistic treaty.

Finally, there have been tons of trickery in the process of writing the ACTA text itself. One such trick is the liberal use of the term “fair process” in the ACTA documents; this has no known legal meaning whatsoever. The legal term is “due process”. The room full of lawyers who wrote this text and debated it for years can impossibly be unaware of this, of course. Thus, even the ACTA text itself is written in bad faith and trickery.

Overall status

We appear to be winning, having net liberty and freedom of speech trump ACTA and corporate interests – but the margins have been narrow, harrowingly narrow, and continue to be so.

To give one tangible example, in the JURI (Legal Affairs) Committe vote on May 31, Marielle Gallo’s proposal for complete adoption was shot down by 12-10. (Yes, this is the same JURI that has previously had a 113% voter turnout when rejecting copyright reforms, and the same Marielle Gallo that authored the infamous and draconian Gallo Report.)

In this 12-10 vote, Christian Engström, Pirate Party MEP, voted on the winning side of net liberty. Put differently, were it not for the one single pirate on this committee, the JURI committee might not have had a majority for rejecting ACTA.

The same Christian Engström notes that in another European Parliament vote recently, a majority of the Europarliament appeared to vote in favor of ACTA. So the worst mistake we can make right now is to think that this is all over, that ACTA is dead. It is not.

Marielle Gallo asked to have her name removed from the losing ACTA report in JURI, by the way. That shows her lack of understanding of the Internet like nothing else – she will forever be associated with it, because the net doesn’t forget.

One promising nuance in particular is that the LIBE (Civil Liberties) committee opinion says that ACTA is incompatible with fundamental civil rights in the European Union, essentially judging the treaty unconstitutional in the European Union. While this can still be ignored, it is done at quite a bit of political peril.

We appear to be winning, but only by a hair’s-breadth margin, and only because we are fighting hard to keep up the pressure on the European Parliament. In other words, you should send a mail to the next Europarl committee about to vote on ACTA, regardless of whether you live in Europe or not:

Next Steps

The immediate next step is the vote on Monday June 4 in the DEVE committee in the European Parliament, with notable responsibility for third-world development. The opinion on the table is horrible, and needs to be amended 180° or rejected outright.

Committee has voted – do not mail

The DEVE committee The DEVE committee has voted to recommend a rejection of ACTA by a crushing 19-to-3 vote. Do not send further mails.

Send a mail right now – it takes one minute and makes a real difference. One mail a minute is a voter shitstorm in the halls of the European Parliament, and we know very well that we are capable of much more than that.

Using this lookup tool, I have created a mailing list to the DEVE committee named [email protected] that you can use to send a mail similar to this:

TITLE: Please reject the ACTA treaty Dear MEP on the DEVE committee, As a citizen of [your country/Europe/the world], I urge you to reject the ACTA treaty in the DEVE vote on June 4. The treaty deliberately conflates issues like counterfeit fatal medication with teenagers sharing culture and knowledge online, which are two entirely separate phenomena that should never have been allowed to be covered by the same piece of legislative text. Corporate lawyers like to conflate “counterfeiting and piracy”, but they are two completely separate issues that cannot and must not be treated with the same law. Also, the treaty deliberately conflates generic medicine legally made in places like India – essential for third world countries – with counterfeit, potentially fatal, fake medicine. This is not only a blatantly false assumption, it also causes people who are the most in need of such generic, locally legal medicine to suffer and die completely unnecessarily. Finally, the treaty also shuts the door for direly needed reform in these areas in the near future, and the European Parliament and national parliaments should have the ability to make necessary adjustments to key IPR concepts as we transition further into a digitally-framed economy where today’s loud middlemen add less and less real value. Accordingly, I urge you to vote along lines that call for the treaty’s rejection by the European Parliament. Sincerely,

[your name]

(If you prefer to send to the members of the DEVE committee individually, their individual addresses are here.)

After DEVE, the INTA (International Trade) committee will vote on June 20, moved from June 21. INTA’s recommendation is intended to summarize all previous committees plus the opinion of their own. Then, ACTA goes to the main showdown – the vote in the European Parliament some time July 2-5.

Rallies on June 9

To finish up, it is absolutely vital that the June 9 rallies become on par with those held on February 11, for all the reasons outlined in this battle analysis. Some people have started thinking that the battle is won, or that the June 9 rallies could be repurposed to general net-liberty or feelgood rallies. That would be a foolish and possibly fatal mistake to do so at this point in the battle.

We need to keep the pressure up right up until the final vote in the European Parliament that happens some time July 2-5. If that vote is a rejection, and only then, have we won. This is not over until the fat lady sings.