from the hidden-in-plain-sight dept
The first six months of 2012 saw Europeans taking to the streets in order to kill off ACTA in the European Union. Against all the odds, they succeeded in that aim, as the European Parliament voted to reject ACTA on 4 July last year. That defeat has certainly been burned into the memories of Karel de Gucht, the EU Commissioner responsible for negotiating first ACTA and now TAFTA/TTIP. When he was asked whether the latter might see ACTA sneak in by the backdoor, here's what he replied:
"ACTA, one of the nails in my coffin. I'm not going to reopen that discussion. Really, I mean, I am not a masochist. I'm not planning to do that.
So you might think that ACTA is definitively dead and buried in the EU. But then along comes a new free trade agreement, this time between the EU and Singapore, which has the following section, Article 11.44, paragraph 2 (pdf):
If the Commission advances new basic legislation, which I think she should, we will revisit the question, but I'm not going to do this by the back door".
In determining the amount of damages for infringement of intellectual property rights, a Party's judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.
Those with good memories may recall that something similar was to be found in ACTA, and that it was one of the problematic areas that led the European Parliament to reject the treaty. In fact, it's not similar, it's word-for-word identical with Article 9, paragraph 1 of ACTA (pdf). And it's not the only section that's been cut-and-pasted from ACTA: several other paragraphs are also direct copies.
This raises an interesting question. At the moment, the EU-Singapore FTA has only been "initialled": that means it must still be approved by the European Commission, the Council of Ministers representing the member nations, and the European Parliament. So will the EU's MEPs reject the new trade agreement because it represents ACTA by the backdoor -- or at least a part of it? That seems unlikely.
But if the European Parliament does pass the EU-Singapore FTA, de Gucht might then argue that the same sections from ACTA can now be pasted into TAFTA/TTIP, since they are no longer problematic. And if he does so, perhaps he will be tempted to include a few more sections from ACTA, on the grounds that he is doing nothing "by the backdoor", but doing it in the full view of everyone....