Why taking copyright out of ACTA is not the solution
Getting rid of the copyright’s aspect in ACTA as Mrs Leutheusser-Schnarrenberger (German Federal minister of justice) suggested would fail to solve ACTA’s inherent problems.
The following is a non-exhaustive list of issues that will not be solved by political sleight of hand.
A fair balance between protecting intellectual property rights and preserving fundamental rights would still not be achieved. As confirmed by the European Economic and Social Committee, ACTA’s approach is aimed at further strengthening the position of rights holders vis-à-vis the “public”. ACTA favours intellectual property rights in general, not only copyright, at the expense of civil liberties.
The “safeguards” to protect civil rights included in ACTA will still be weak, if not nonexistent. ACTA talks about “fundamental principles” of “privacy”, “fair process” and “freedom of communication” (in Article 27.3, for example), but in international law there is no concept of a “fundamental principle” of “fair process”. The German Minister may be misled somewhat by the incorrect translation of “fair process” in the legally non-binding German translation of ACTA (only the French, Spanish and English versions are authoritative). The understanding of those undefined terms will be left to the discretion of the different parties to the Agreement, putting fundamental rights and legal certainty at risk. This serious gap in ACTA will not be resolved by excluding copyright from the Agreement.
Demanding for further interpretations and more legal clarity from the European Commission may appear appealing, but any assurances will not be binding on the Commission itself nor even possible in the case of privatised enforcement by foreign companies (as envisaged by Article 27.3 of ACTA), nor would they be binding on other parties to the Agreement, in relation to, for example, customs enforcement.
Moreover, an international agreement that has consequences on the Internet is not only about European interpretations but also about how the other parties will implement it. We know from current practice that encouraging private cooperation means favouring enforcement outside the rule of law. Article 21 of the Treaty of the European however states that the EU must support democracy and the rule of law in its international relations. No “clarifications” from the European Commission will not fix this breach nor can it be solved by removing copyright from the Agreement.
It is also an illusion to think that a fundamental negotiation of the Agreement that would solve the most egregious problems in ACTA is possible. Either the renegotiation would be so superficial as to fail to solve ACTA’s many problems, or it would involve the same exclusionary approach as the first negotiation, which would be a recipe for making the same mistakes all over again.
ACTA raises too many profound legal issues and the simple removal of copyright from the Agreement is not the solution. ACTA is inherently problematic and this can only be solved by rejecting the Agreement as a whole. Effective anti-counterfeiting legislation is needed – however international enforcement is only possible by using an inclusive approach that will create the credibility for global implementation.