from the is-that-the-smell-of-panic? dept
It was only yesterday that the European Commissioner Karel de Gucht made the surprise announcement that the European Commission would be referring ACTA to the European Court of Justice (ECJ) "to assess whether ACTA is incompatible -- in any way -- with the EU's fundamental rights and freedoms." Just a few hours after that, there are already signs of panic among ACTA's supporters that the treaty may indeed be incompatible -- and thus dead in the water as far as the European Union is concerned.
Here, for example, is a press release from the International Trademark Association (INTA), in which it makes an extraordinary offer:
the International Trademark Association (INTA) stands ready to provide any assistance to the Court or other interested parties in order to highlight the positive effects the trade agreement will have on the EU, its economy and its citizens.
This is wrong on just about every count. For a start, there have still been no "discussions" about ACTA, despite the fact that public interest groups have been requesting them for years. And is it any wonder if there is a "heightened sense of mistrust" in online conversations if the governments negotiating ACTA have consistently refused to make key information available to the public?
The referral provides an opportunity for interested parties to continue the discussions based on ACTA's text itself, and not the heightened sense of mistrust and misinformation that has proliferated in online conversations.
But most of all it's wrong because the referral to the ECJ is emphatically not an opportunity to have a general chat about ACTA: it's for the EU's most senior judges to consider in detail whether the treaty as negotiated is compatible with Europe's existing laws -- not something a trademark association can contribute much to.
In particular, those judges will be looking at possible incompatibilities with the EU's "fundamental rights and freedoms." But that, of course, is the last thing INTA wants the judges to think about:
INTA hopes that the European Court of Justice will make a considered and quick assessment of ACTA, acknowledge the serious threats that counterfeiting and piracy pose for the EU and provide the necessary clarity to pave the way for consent to the Treaty by the European Parliament and ratification by Member States.
How the judges are supposed to make an assessment that is both "considered" and "quick" is something the press release doesn't make clear. But leaving that aside, together with the fact that the referral is purely about rights and freedoms, not commercial considerations, this does highlight an important, if obvious, point: that the principal justification for ACTA remains that it will tackle counterfeiting effectively. But will it?
Counterfeiting and piracy are on the rise and constitute serious threats to consumers, legitimate businesses and innovators. ACTA is instrumental for tackling these issues
The European Commission has put together a document explaining the rationale for ACTA that contains the following claim:
As Europe is losing billions of Euros annually through counterfeit goods flooding our markets, protecting Intellectual Property Rights [with ACTA] means protecting jobs in the EU.
But as I have explored elsewhere at some length, that makes no sense. According to the EU's own figures, 99% of those counterfeit goods entering Europe come from countries that are not signatory to ACTA. The treaty will therefore have no effect on those counterfeits in their countries of manufacture. And once they get to the EU, fake goods can be dealt with using existing EU laws. ACTA will make no difference because, as we have been told repeatedly by the Commission, the treaty changes nothing in Europe. Thus, ACTA will not help tackle that flood of counterfeits inside the EU, nor will it protect jobs there.
Interestingly, when he announced the referral of the treaty to the ECJ, de Gucht used a slightly different argument about fake goods to justify the ratification of ACTA:
Intellectual property is Europe’s main raw material, but the problem is that we currently struggle to protect it outside the European Union. This hurts our companies, destroys jobs and harms our economies. This is where ACTA will change something for all of us - as it will help protect jobs that are currently lost because counterfeited and pirated goods worth 200 billion Euros are floating around on the world markets.
But once more, what this skates over is the fact that ACTA will only have any impact on the countries that have signed it -- others, like China, will be able to carry on as before. So ACTA will only affect a portion of the "counterfeited and pirated goods ... floating around on the world market" -- those that are being offered in ACTA countries.
The main signatories outside the EU are Australia, Canada, Japan, New Zealand, South Korea, Switzerland and the US, all of which already have relatively stringent laws against counterfeit goods. So that means that the only places where ACTA might have some effect are Mexico and Morocco, which may be obliged to tighten up their anti-counterfeiting laws. But that on its own will achieve little: as with the counterfeits "flooding" Europe, ACTA will have almost no effect on those "floating around on the world markets."
So not only is INTA misguided in trying to divert the conversation away from the key issue of the EU's fundamental rights and freedoms, its principal argument in favor of ACTA -- that it will tackle counterfeiting in Europe -- just doesn't hold up. Which leaves us with INTA's parting shot:
it is imperative that the EU continues to protect its citizens and uphold its status as a responsible trading partner by joining the other negotiating parties in the international effort to fight counterfeiting and piracy.
In other words, if you decide not to ratify ACTA because it undermines civil liberties and doesn't tackle counterfeiting, we'll call you "irresponsible" and other rude names.
Yeah, that'll work...