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'ACTA is dead,' says Europe's digital doyenne

Until the next ACTA, that is...

The European Commission's VP for the Digital Agenda Neelie Kroes has signaled that the controversial Anti-Counterfeiting Trade Agreement (ACTA) is dead, and the world's copyright industry will have to change to suit people, rather than vice versa.

"We have recently seen how many thousands of people are willing to protest against rules which they see as constraining the openness and innovation of the Internet," Kroes said in a speech on Friday. "This is a strong new political voice. And as a force for openness, I welcome it, even if I do not always agree with everything it says on every subject.

"We are now likely to be in a world without SOPA and without ACTA," she noted. "Now we need to find solutions to make the Internet a place of freedom, openness, and innovation fit for all citizens, not just for the techno avant-garde."

She added, without mentioning any names, that industries should not look to business models of the past if they would limit opportunities in the future, saying that "industries once based on limitation and control could now be based on customer focus, sharing and interactivity." Closed business plans would strangle innovation and freedom, she said.

With the treaty still waiting for a ratification vote in the European Parliament, this is as close as she can come to calling the whole thing off. Her spokesman, Ryan Heath, told AP that Kroes was "observing political reality." That political reality is that people don't want ACTA, and while such schemes seem perfectly reasonable in private, they are failing more regularly when put to a vote.

Six wild years

The original ACTA treaty talks started in secret with the US and Japan in 2006, but broadened to include the EU, Australasia, Canada, and several other countries. It was originally billed as a plan to stop trade in counterfeit goods and medicines, but it was ACTA's intellectual property side that rang the first warning bells.

ACTA negotiations were conducted in private, but there was at least one member of the team who regularly leaked content such as memos and briefing documents. Some of these docs included hair-raising schemes such as getting customs officers to check for copyright infringement on travelers' electronics items.

Simple logic should tell you that such a system was never going to be in the cards – long queues are the norm for Heathrow these days, but with that kind of checking going on world travel would clog up. Instead, such suggestions are usually bandied about as talking points, or so they can be later dropped in the spirit of compromise or as concessions.

The secrecy of the negotiations, and the slow drip of information about their contents, set off warning bells among internet campaigners – beyond the usual suspects who seem to think that a fast internet connnection gives them a right to purloin whatever digital content they fancy. ACTA's organizers didn't help matters by clamming up and trying to lock down any further information from elected representatives and official watchdog bodies.

Meanwhile, concern over ACTA also grew among some of the main national and business blocks around the world. China and India both signaled their opposition. Google came out against it and ISPs weren't keen either, since ACTA meant considerable expense for them with zero return – besides a lot of pissed-off customers.

Meanwhile, in the US...

The final draft of ACTA leaked out in November 2010, the full text was published in April 2011, and the lobbying began in earnest. But while this was going on, two new proposed US laws – SOPA and PIPA – were firing up protests online and off. While these two acts were fundamentally different from ACTA, the approach they took to intellectual property violations was out of the same playbook, and their eventual stalling gave the opposition heart to take on other targets.

While it looked at first as though ACTA would be signed off by the European Parliament, some politicians expressed doubts. At least some democratic oversight was available; in the US, on the other hand, ACTA might not even have been put to a vote because, owing to some legal fine print, it isn't considered a formal treaty as such – something several members of Congress unsurprisingly have a problem with.

In January, 21 EU representatives signed the treaty at a ceremony in Japan. On the same day, the European Parliament treaty monitor (dubbed a rapporter) Kader Arif resigned in protest and issued a strongly worded rebuke of both the treaty and its future.

"This agreement might have major consequences on citizens' lives," he said, "and still, everything is being done to prevent the European Parliament from having its say in this matter. I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade."

Public protests, from both individuals and politicians, started shortly after the January signing – led in large part from the former Eastern Europe. As public action grew, more politicians started to get onside, and the Slovenian ambassador who signed ACTA for her country publicly apologized and urged people to get out into the streets.

Germany and others stated that they would hold off on ratification until after the European Parliament vote, scheduled for June, and legal consultation was sought to check if ACTA did violate the civil liberties of EU citizens. Subsequently, the European Data Protection Supervisor (EDPS) descried it as unacceptable, and the June vote has been looking increasingly unlikely to pass.

ACTA 2.0

It now looks as if Kroes is acknowledging that the Commission doesn’t expect to get the treaty through the European Parliament. If that's the case, ACTA is effectively dead – and there's little stomach for trying to push it through in the US, either. It's an election year, and there's little to gain in terms of public opinion in pushing for something like ACTA, aside from the odd campaign contribution.

Which is a pity. Some kind of international agreement is needed to sort out the current deadlock in the intellectual property industry. Six years of negotiations have produced little other than some impressive air miles to negotiations in Washington, Paris, Tokyo, Wellington, and other sunny locales. Meanwhile, companies and individuals still have to tiptoe through a legal minefield while trying to conduct business.

Another agreement like ACTA will no doubt be coming along shortly, if only because it really has to. Some kind of framework has to be sorted out that allows reasonable fair use of content and allows some return to digital IP producers and consumers, while making sure that centuries-old liberties are protected.

ACTA could have been an important step in the road to that, but was fatally flawed – in this hack's opinion – by its secretive process and limited number of sources. If people are going to buy into an eventual settlement, then the process needs to be as open as possible, and every relevant body – not just the business community – needs to have a say. ®

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