On the 18th January this year (2012), extraordinary scenes played out across the Internet as many interests, both commercial and otherwise, met to protest legislation passing through the American Senate; the Stop Online Piracy Act and its cousin the Protect Intellectual Property Act. The proponents say that these bills were needed to stem losses caused by online piracy. These groups were primarily digital rights holders like the MPAA, and the RIAA. The against lobbyists and protest sites consisted of largely open source developers such as WordPress (who, it should be noted, provide the free software which makes up the Wessex Scene website), Mozilla, (who it should be noted, provide the free software which I am using to write an article on the Wessex Scene) and Wikipedia (Who are freely providing well-referenced information to aid me in writing an article for the Wessex Scene).

There was a lot of to-ing and fro-ing, but the outcome was the shelving of  SOPA and PIPA, as it became apparent that the legislators’ loss of political capital  would be too much to bear, or remain in office with. What passed by unnoticed was something much more secretive and insidious. ACTA is SOPA and PIPA’s uglier big brother. It is the Anti Counterfeiting Trade Agreement, and it was signed on our behalf by the European Trade Commission, with Britain’s apparent consent.  This prompted the EU rapporteur on this agreement, Kader Arif to resign in indignation at what he called the “masquerade”.

“I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade.” 

Kader Arif
Former EU ACTA Rapporteur

Right from the get-go, something seems amiss in the manner in which this agreement is being negotiated. As he resigned, Arif cited the fact that the negotiations surrounding the agreement, having started in 2006, only came to light after a document leak to Wikileaks in 2008. Even then the negotiations continued behind closed doors, without public consultation, despite a mounting backlash.

In a bizarre twist of the left hand not keeping track of the right, the European Parliament was evidently still in the dark as to the content of the agreement as late as 2010, and issued an urgent mandate demanding “… parliamentary access to ACTA negotiation texts and summaries”. Strangely, the commission itself is at pains to claim that the Parliament was kept  informed at all stages. The agreement was published in November that year.

[The European Parliament] deplores the calculated choice of the parties not to negotiate through well-established international bodies, such as WIPO and WTO, which have established frameworks for public information and consultation

European Parliament resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations

It is also interesting that in a list of companies who had early access to the ACTA documents is NewsCorp , whose UK papers have not run a story on the subject.

The document itself does not make light reading; from the thick and gloopy legalese, I can draw three obvious concerns:

  1. Your personal information can be passed to a rights holder upon allegation that you have infringed copyright or intellectual property.
  2. Ironically for an agreement for promoting creativity, it includes a clause to prevent the development of technology that can be foreseen to be used to aid infringement, without qualification of what that means; a USB stick could reasonably be covered by this clause, were it not that it already exists.
  3. Materials and implements (for example computers) used in piracy would be destroyed not only without compensation but in fact at the infringer’s expense.

To make matters worse, the agreement is superfluous. In a public display, infamous file sharing site Megaupload was taken down (in spite of, its implicit support from artists such as Alicia Keys and Kanye West). Furthermore, people are increasingly finding instances of seized url pages, where national authorities have taken sites offline for criminal activity.

Clearly then, rights holders are able to enforce their will, and do not represent the views the of artists they claim. Moreover, with hardware producers HP claiming that Open Source (effectively antithetical to copyright) is now more profitable than closed-source solutions, the claim in the opening pages of the ACTA document that intellectual property enforcement is necessary for economic development loses its legs, as does large segments of the agreement.

ACTA has yet to be ratified by the European Parliament, a necessary step for the agreement becoming a part of our international policy.

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