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Yesterday, we were treated to news of a very positive development from Europe: the European Parliament voted, by a massive majority (478-39), to reject the Anti-Counterfeiting Trade Agreement (ACTA).
This rejection comes after more than five years of negotiations that were plagued by controversy and outcry against ACTA’s secretive process. So what should you make of this rejection and what lessons should future trade negotiators learn from the ACTA experience?
For one, it should be apparent that the negotiating process is just as important as the substance. Shutting out the public and their representatives and giving privileged access to the entertainment and pharmaceutical industries severely undermines the legitimacy of the negotiating exercise.
In a post-SOPA world, such a secretive process is particularly prone to failure because people are now paying attention when policy makers and trade negotiators attempt to trample over their rights in the name of protecting these industries.
Second, ACTA’s defeat in Europe indicates that intellectual property protection is not the center of the universe and that values such as free expression and due process cannot be sacrificed in the name of protecting intellectual property. A concern for these rights was one of the reasons Europe rejected ACTA.
ACTA negotiators paid lip service to these values and accused those who raised serious concerns about the agreement of spreading misinformation. Trade negotiators, including those negotiating the TPP, will do well if they realize that sticking their neck out for an intellectual property chapter that only protects that rights of owners, at the expense of the public interest, jeopardizes the chances of getting an agreement through.
So what happens with ACTA next? As I have explained before, in order for the agreement to come into force, six countries have to ratify it – i.e confirm their willingness to be bound by it. This is not accomplished by signature alone and requires a further affirmation, often in the form of consent of national legislatures.
As of now, ACTA does not have the required six ratifications. Even if it did, Europe’s absence from the agreement is a major setback. After all, the European countries are a vast majority of the ACTA negotiating countries (27 out of 37).
So, ACTA’s defeat in Europe, combined with the USTR’s announcement to introduce a provision on copyright limitations exceptions in the TPP is a ray of hope for the public interest community. Of course, that hope is tempered by the fact that we do not know whether these provisions will be sufficiently robust to protect the public interest. Meanwhile, the TPP will likely continue to have imbalanced provisions on breaking digital locks (DRM) and increasing enforcement that will threaten the public interest.
For a more indepth analysis of ACTA's rejection and USTR's announcement on limitations and exceptions, read my colleage, Harold Feld's blog post available here.