The controversial Anti-Counterfeiting Trade Agreement (ACTA) may have been thoroughly spanked in a European Parliament vote today, but there are ominous indications that its proponents may not be willing to give up so readily. Comments made by European Commissioner and ACTA backer Karel De Gucht ahead of the vote suggest that the agreement could well return despite the strongly expressed opinions of the parliamentary members, using decisions on fundamental copyright rights passed by Europe's highest court.
"As you come to make your choice about how to vote tomorrow," De Gucht wrote in an open letter to members yesterday, "you should make no mistake: a vote against ACTA will be a setback for the protection of our intellectual property rights around the world. Neither are there any quick fixes for its rejection. Those who think that we can come back anytime soon with a revised agreement or with a new treaty have been misled."
However, while that's undoubtedly music to opponents' ears - and there are plenty of them, with the vote coming in at 478 against and just 39 in favor - the commissioner implied that there were still workarounds so that he and ACTA's other backers could have things their way.
"What is true is that, if Parliament votes this treaty down, the Commission will continue to wait for the opinion of the Court and study it closely" De Gucht continued. "Why? Because citizens have raised concerns over its potential impact on fundamental rights, because many of you have raised similar questions – so let's get some answers. I consider it my obligation, my responsibility as European Commissioner – indeed the responsibility of us all – to ask for clarity from Europe's highest court."
The fear is that, while Parliament may disagree, the court's decision might end up carrying more sway, allowing De Gucht and the recording industry to push through ACTA-style regulations.
"Furthermore, we will also look at how the debate on intellectual property rights evolves over the coming months. There are legitimate issues to be discussed and clarified about some rules on intellectual property rights in the digital environment. For instance, the definition of "commercial scale" and what sharing information means in relation to the challenges one faces with respect to the protection of intellectual property" Karel De Gucht, European Commissioner
ACTA is pushing for strong regulations around counterfeit goods, generic medicines and internet-based copyright infringement, among other things. It would also pave the way for a new governing body - outside of the World Trade Organization, the World Intellectual Property Organization, or the United Nations - which would decide what constituted infringement and not. However, opponents have criticized the Agreement as discriminatory of developing nations, among other groups.
"I hope that these discussions will be able to happen in their proper context – which is in debates about the substantive law of the European Union, not about international enforcement" De Gucht concludes. "Besides the European Parliament, the Commission would also discuss the outcome of the Court referral with other signatories of ACTA and would then consider further steps to take."