ACTA: the calm after the storm?

Considering the fuss that was made about ACTA just two months ago, there is an uncanny, almost eerie silence surrounding the same issue today.

Gone are the previously ubiquitous Guy Fawkes masks, and with it the constant news coverage of a Europe-wide protest that had engaged literally millions of EU citizens. And yet, debate and discussion on the same controversial topic still persists: if not on the streets and squares, at least in the offices of the European Parliament which will soon have to vote on this issue.

Sharon Ellul Bonici, a former EP candidate with Labour, has been rather more vocal than most in opposing a law widely believed to be more about controlling the flow of digital information than warding against counterfeit goods.

But what indications are there within the proposed law itself, or the way it is being discussed, that gives rise to suspicions of ulterior motives?

"I share the critics' concerns and support wholeheartedly the local and global anti-Acta Group," Ellul Bonici begins. "For all those who cherish freedom, ACTA should be of great concern. The internet has empowered politically motivated people to conduct campaigns globally with little means. This scares the establishment that seeks to preserve the status quo."

What scares them most, according to Ellul Bonici, is that people can communicate and see through deceit.

"One example that comes to mind is the way the people saw through the KONY 2012 scam. The only way this can be retained is if the internet remains free. If ACTA is enforced it will pave the way towards silencing alternative media and websites that do not conform with acepted dogma, and could be eventually shut down under ACTA legislation."

Immediately she quotes chapter and verse from the law itself. Starting with Article 27: "A party may... order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement... where such information is being sought for the purpose of protecting or enforcing those rights."

Ellul Bonici sees this as a step towards control of the net. "Will ISPs end up as the internet's police force by proxy? And who will be monitoring this data? That is what we should be asking..."

Echoing other widespread concerns, she also argues that the law, in its present form, would also hinder generic medicine and future development. 

"There's more to this than meets the eye. Who is ultimately behind it and what are their aims? The 'ACTA Committee' will have the power to interpret, modify and amend the agreement after it has been ratified. It is like signing a blank cheque to the ACTA negotiators. This would create a precedent in bypassing parliament in critical policy-making areas... and this is unacceptable in a democracy. There are already laws in place to protect against counterfeiting. ACTA is not about counterfeiting, file-sharing or downloading of movies or songs. like some are trying deliberately distorting the picture. Countries where most counterfeiting takes place - namely China, Russia, India and Brazil - are not part of ACTA, and have stated publicly that they will never be."

Discussions at European
level are still supposed to be under way. But given the extent of popular opposition in Europe, some politicians have been reluctant to speak openly, either in favour or against. Ellul Bonici points out how this reticence is beginning to fade into the background, as more details about the law emerge.

"The ACTA Rapporteur David Martin said yesterday (Thursday) during a conference organised by S&D that he will recommend that the EP should reject this trade agreement. He stated that 'there is inadequate separation of commercial and personal use..."

In fact it is only this week that the official positions taken by the various political families represented in the EP have begun to concretise.

"The EPPis in favour but have not taken an official position yet," Ellul Bonici adds. "Most MEPs in this group seem to be favouring ACTA, including the two PN MEPs namely Simon Busuttil and David Casa."

Elswhere, S&D (the Social Democrats) held a conference in the EP on Thursday, in which they agreed to vote against next June. However, the Alliance of Liberals and Democrats for Europe have yet take a clear/stand.

"The Greens/EFA (European Free Alliance) have been consistent from the beginning and believe that under the circumstances of its shady negotiations it was never credible," Ellul Bonici points out, quoting Jan Philip Albrecht MEP: "ACTA has a repressive and unbalanced direction which would undermine the fundamental rights of EU citizens."

Europe of Freedom and Democracy is also officially against ACTA, as (in Sharon's word", "all EU-critical MEPS never vote for further supranational power".

As for GUE/NGL (European United Left/Nordic Green Left), these believe that "the fight against counterfeiting is important and necessary. The problem is that ACTA is not necessary for this because adequate rules already exist and could be simply improved and updated. The real aim of ACTA is much broader than that. The fight against counterfeiting is being used here to extend the domination of rich countries and corporations over trademarks, patents and copyright using specific criminal laws".

"I also spoke to Daniel Hannan of the ECR (European Conservatives and Reformists), and he said that ECR are in favour of the proposal with reservations on the actual text. They are still discussing it and no official position has been taken until today (Friday)".

Ellul Bonici predicts that non attached members will most probably all reject it.

"So far the ones I know and met on ACTA all said they are against it. In total there are 55 non-
attached MEPs.

All thigns told, then, the overwhelming likelihood is that the EP will reject ACTA by a large, possibly gargantuan majority. But will this end the controversy? Not likely. As though to provide more evidence of ulterior motives in the drafting of this law, it seems that when the Europeasn Commission received a two-million signature petition against ACTA, it took the unprecedented initiative to refer the issue to the European Court of Justice...

"It is becoming a very interesting process indeed," Sharon admits when asked how this was received among MEPs. "If it cannot happen in any democracy it will definitely happen in the EU institutions. Remember that if the EU itself had to apply to join the EU, it does not fulfil the democratic credentials to do so. Now we are going to witness a face-off between the EU Commission and the European parliament...

Ellul Bonici explains that the after taking over a month to respond to that petition, the Commission referred the ACTA agreement to the European Court of Justice (ECJ) on April 4. The question referred to the EJC was: "Is the Anti-Counterfeiting Trade Agreement (ACTA) compatible with the European Treaties, in particular with the Charter of Fundamental Rights of the European Union?"

"Very wisely they used Article 218.11 of the Treaty on the Functioning of the EU,  which grants the Commission the power to request the Court's opinion on an international agreement. On the other hand the EU Parliament's INTA Committee refused to halt the ACTA debate, and will not refer the agreement to the EU Court of Justice. In a 21-to-5 vote plus two abstentions, the Parliament decided to go ahead and will vote on ACTA in June, as originally planned. So we are going to have a very interesting Strasbourg session with too many lobbyists running around like headless chickens trying to convince MEPS to vote one way or the other.

As tends to happen at such times, the challenge for MEPs will be to stick to their principles despite what promise to be enormous pressures.

"Let's hope the big Pharma and conglomerates don't win the day and it will be decent vote in favour of European citizens and respect the 2.4million signatures that voiced their opinion against ACTA....

At the same time, however, it remains unclear how this vote will be impacted by the Commission's decision to involve the ECJ, for a case that can take between 18 months to two years to conclude. EP President Martin Schultz himself stated that, by "taking the court step, the commission has removed the immediate chance for parliament to discuss as issue that citizens feel strongly about".

But it remains a grey area.

"Either way it needs to be ratified by the European parliament so if the European Parliament Members reject it then hopefully it will be dead and buried irrespective of the EJC ruling," Ellul Bonici says. "Unless they decide to resuscitate it, anyway. That is the procedure and I hope they stick to its legitimate course. So if parliament rejects ACTA in June it, would be very interesting to see how they will try to force feed it regardless."

Ironically, all this seems to directly contradict the Lisbon Treaty, which was supposed to empower, not bypass, the European parliament. Ellul Bonici agrees.

"The Lisbon treaty gives more power de facto to the European Parliament, and the unelected civil servants of the Commission are always making sure they are the ones who legislate. Most of the time they have it their way. The thing with ACTA is that it became quite public. But this is an on-going fight, if one is accustomed to legislation at EU level. Unfortunately people are not aware and little do they know how things are manoeuvred in Brussels.

"The power which lobbying companies have over the Commission is tremendous. In the last legislation, the EU Commission had over 3,000 secret consultative committees, mostly represented by lobbyists..." 

Assuming for a second that the force-feeding is successful, and ACTA is indeed passed into law. What difference will it make to the prevailing status quo regarding intellectual property rights, etc?

"This is an expired concept. We have to update according to the times we live in.

"If ACTA was in place 10 years ago, we would all still be with dial-up internet and everyone rushing home to log in five minutes before 6 pm. We would still be working on a 2MB computer and we would not be enjoying our smart phones we have today. It is not about legitimate dues: of course there should be recognition and legitimate dues; but all should be free to develop and build on what's already there. Humanity can only benefit from this..."

Still, there is a counter-argument that accuses anti-ACTA campaigners of wanting to deny copyright holders their legitimate dues...

"First of all - a long time ago it seems - mankind was more generous and today we have become too greedy. It is not the artist and musician that complains, but mostly the ones making billions by exploiting them.

Legitimate dues should be respected and honoured. I quote La Quadrature: "The result of more than three decades of expansion of informational property rights, today's copyright regime is by far too rigid and is in practice profoundly at odds with the digital environment..."

She goes on to argue that, if our societies are to fully benefit from the internet, lawmakers need to move away from brutal enforcement of outdated and restrictive "intellectual property" regimes and demonstrate pragmatism.

"In particular, one fundamental fact needs to be acknowledged by policy-makers and cultural businesses alike: digital technologies allow for the perfect replication of cultural goods at virtually no cost. Regulations that run counter to this reality - for example, by trying to alter the architecture of the Internet in order to deter copyright infringements, or by imposing technical measures that artificially recreate the scarcity that existed in the 'old' cultural economy - defy common sense and hold back socio-economic progress while being often unrealistic from a technical point of view."

Ultimately, what worries people like Sharon Ellul Bonici is: who is supporting ACTA? She herself supplies some of the names behind the legislation: GlaxoSmithKline, Pfizer, Sanofi-Aventis, Monsanto Company, Time Warner, Sony, Verizon, The Walt Disney Company, the Motion Picture Association of America, News Corporation, and Viacom.

"GlaxoSmithKline reported revenue of GBP27.862 billion in fiscal 2011 and analysts expect the company to report revenue of GBP28.727 billion for fiscal 2012. Time Warner's net profit jumped to $564 million last quarter from $392 million the year before. Revenue grew 4% to $5 billion. The Walt Disney Company: annual gross revenue went up from $38.063m in 2010 to $40.893m in 2011. So the idea that these companies are losing revenues because of counterfeiting is dubious..."

Lastly, she turns to the The Social Science Research Council, which carried out a major study on piracy.

"This study stated that, even if one were to admit that some sectors in the industry suffer losses directly because of file-sharing, the fact that the money not spent on, say, CDs and DVDs is simply transferred to other activities and sectors, which potentially better contribute to EU economic and social wealth. That does not sound bad if you have a social conscience, does it?"