EU Parliament Puts Final Nail in ACTA's Coffin... For the Moment

EUROPE—Though last rites were ostensibly given in May, the European Parliament made the demise of ACTA, the Anti-Counterfeit Trade Agreement that was supposed to get the world on the same page in the global fight against digital piracy, presumably official Wednesday in a vote that saw 478 members cast against, 39 in favor, and 146 who decided not to vote at all. Despite the lopsided vote, however, ACTA may very well be brought before the European Parliament again, in 2015, if Karel De Gucht is true to her word. In comments made a mere two weeks ago, the European Commissioner for Trade said she intends to "continue to pursue the current procedure before the Court, as we are entitled to do. A negative vote will not stop the proceedings before the Court of Justice." Her intentions were made in Brussels, before a gathering of the European Parliament's International Trade Committee, where she made the case for an all-encompassing law that protects intellectual property and entreated the members to delay a vote before the European Court of Justice had a chance to rule on whether the Agreement was compatible with European Treaties or not." According to the Register, however, Euro MPs wanted to vote before the Court had a chance to rule, perhaps because of divisions between the Parliament and member states. The paper quoted a source as saying, "There was tension between the Parliament and the Council/member states because the member states negotiated the criminal sanctions chapter of ACTA, whereas a criminal sanctions directive, agreed by the Parliament several years ago, never saw the light of day as it remains blocked in the Council." There was also considerable criticism of the way the Agreement had been negotiated behind closed doors, fueling speculation that it would be unfairly weighted to the benefit of entertainment companies and against the rights of internet users. However, as the Register notes, "The treaty lost its copyright liability provisions some time ago, and its rejection will hurt many SMEs and small inventors who genuinely need help in policing their trademarks and brands against fraudsters and copy-cats." Indeed, as one point in its life, ACTA did contain SOPA-like provisions that levied severe sanctions on illegal files-sharers, and even allowed the censorships of whole websites, but as ZDNet reported in January, the more controversial measures have been removed from the final text of the Agreement. De Gucht tries to hammer home that point before the Parliament. "My considered view as a lifelong supporter of human rights and fundamental freedoms, is that there is nothing to fear in this agreement," she said. "As I have said before, ACTA is not an attack on our liberties, it is a defence of our livelihoods. This is because we do not have to modify any part of our internal legislation, the so-called acquis communautaire. What is legal today in the European Union, will remain legal tomorrow once ACTA is ratified. And what is illegal today will remain illegal tomorrow." Though her appeal fell mostly on deaf ears, she said a no vote will not stop her from moving forward in the courts. " If you decide for a negative vote before the European Court rules," she promised, "let me tell you that the Commission will nonetheless continue to pursue the current procedure before the Court, as we are entitled to do. A negative vote will not stop the proceedings before the Court of Justice. If the Court questions the conformity of the agreement with the Treaties we will assess at that stage how this can be addressed. However, I expect that the Court will instead find ACTA to be fully in conformity with the Treaties. "First, I would consider proposing some clarifications to ACTA. For example on enforcement in the digital environment. We could look at this in the light of the discussions you will have had on legislative proposals which the European Commission is set to put before the Parliament and the Council. Or for example, we could seek to clarify further the meaning of 'commercial scale'. "I am also open to a discussion on what sharing information means in relation to the challenges one faces with respect to the protection of intellectual property. It is indeed a new challenge for the classical approach of [intellectual property rights]. But does this discussion not rather have its place in the debate on the substantive law, not in ACTA, which is solely about enforcement? "These are important reasons to pause for reflection as I believe we will all make a better decision on ACTA if we have a clearer view of the future direction of the European intellectual property system. "Second, once we will have identified and discussed these possible clarifications, I would intend to make a second request for consent to the European Parliament. Whether the Parliament will consider it under this legislature or the subsequent one, will be for you to decide." So, while groups like the Electronic Frontier Foundation have come together to promote a Declaration of Internet Freedom in the days leading up to the United States' celebration of its own independence, efforts to provide what De Gucht referred to as a "framework" for freedom remain alive, through a modifies ACTA, and even a redesigned SOPA, now called CISPA, which underscores the reality that, like zombies, these legislative efforts continue to stalk the earth long after they have been pronounced dead.