ACTA in 2012: From Desperation to Inspiration
December 20, 2012 10:32 AM
by Glyn Moody
The European Commission has announced that it is withdrawing its referral of ACTA to the European Court of Justice. If you had forgotten about that particular detail, you're probably not alone: so much happened with ACTA in such a short space of time during the last year, that it's easy to lose track.
I therefore found it an interesting exercise to review exactly what did happen, when, for a talk I recently gave at the Second World Congress on Intellectual Property and the Public Interest, where I tried to map out the sequence of events that led to the extraordinary rejection by the European Parliament on 4 July. I've embedded the slides below, but here's the narrative version.
Things looked pretty desperate for ACTA at the beginning of 2012: ACTA was finalised in November 2010, and officially published in April 2011. In October 2011, most countries had already signed it, but not the EU (or Mexico). However, at that point, there was little reason to believe anything would happen to stop ACTA being duly signed and ratified.
However, something rather exciting was indeed happening, but over in the US. There, two bills had been introduced just over a year ago: Stop Online Piracy Act (SOPA), and Protect IP Act (PIPA). These had appeared almost from nowhere, and were being pushed through the US legislative system in haste.
But people in the US began to organise themselves to fight these bills, with a speed and scale never really seen before. Despite attempts to paint this as a Google-led initiative, it was only later that Google got involved: it came originally from the Net itself - its activists and users.
Things culminated in the great SOPA Blackout Day on January 18, when key sites like Wikipedia, Mozilla and Google blacked out or modified their home pages, and linked to more information about SOPA and PIPA. Over 100,000 sites took part in this, and it drove a huge number of emails and phone calls to US politicians. Indeed, these were on such an unprecedented scale that many previous supporters of SOPA moved to distance themselves from what was rapidly turning poisonous in political terms, and once that started snowballing, the bills were withdrawn.
By coincidence, on the other side of the Atlantic, a meeting about ACTA took place between a group of NGOs and activists and two Polish ministries a few hours later. This was meant to be a fairly routine meeting, since the Polish government had informally agreed not to move forward on ACTA until the concerns of the civic groups and activists had been addressed. But at that meeting, it was announced that ACTA would be signed by Poland just one week later.
No explanation was given, nor any attempt made to mollify this news. It's a measure of how secure the Polish politicians felt that ACTA would simply be pushed through that this announcement was made in this brutal fashion. Needless to say, the NGOs and activists were shocked by this news. But their anger soon turned to action.
Michał Woźniak, who has written perhaps the best chronicle of the dramatic events that took place in the next few weeks, believes that there were five main reasons why Poland erupted over ACTA.
The first was that the Polish government had gone back on its word - never something that goes down well. The second is the presence of an imminent deadline. Too often, with distant deadlines people dissipate time in pointless discussion. Here, people were forced to act immediately. Another factor was that Polish activists had been following ACTA for some years, and so the chief dangers were well known - there was no need to sit down and start analysing something new. Significantly, he mentions the defeat of SOPA and PIPA, which took place just before the meeting in Poland. Finally, he raises the interesting point that many people in Poland still had vivid memories, either directly or via their parents, of what it was like to live in a world of censorship and surveillance (however, another Pole disagrees with this point.)
Whatever the reasons, Poles took to the streets in large numbers shortly after the meeting where it was announced that ACTA was being signed. Woźniak says that NGOs played the role of facilitators, rather than organisers. However, one rule they suggested was "no-logos": that is, no logos or banners that suggested affiliations with traditional political parties. I think this was important, because it made the protests simply against ACTA, not part of the usual political point scoring. It allowed people from disparate political backgrounds to come together on this common ground, and had a proportionately greater effect on politicians. The fact that people were taking to the streets when it was 30 degrees below zero probably impressed many people outside Poland even more.
It's indicative that the Polish government still wasn't too worried at this stage that it called these moves (and some DDoS attacks by Anonymous) "blackmail", and went ahead with the signing of ACTA on 26 January, just a week after that fateful meeting. But the protests didn't stop as the politicians probably hoped: they gained in strength, with a poll indicating 64% of Poles interviewed against ACTA. Such surveys are notoriously unreliable, but the 1.8 million emails sent to Polish MEPs showed unequivocally the depth of feeling against ACTA.
As a result, the Polish government started trying to cool things down. It called for "dialogue" - a sure sign that it felt the situation was getting serious. When that failed, it did something dramatic: it suspended the ratification process. That was on 3 February; ten days later it did something even more dramatic, and called on other countries and the European Parliament to reject ACTA.
The turnaround took less than a month, and during that time things began to move in the rest of Europe. For example, on 25 January, the Dutch MEP Marietje Schaake published her concerns about ACTA on Reddit - a telling choice. The next day, Kader Arif, the European Parliament's Rapporteur for ACTA - essentially the person tasked with coming up with an official recommendation on a given topic - denounced the whole process as a "masquerade", as I reported at the time.
Then, in another striking declaration, the Slovenian amabassador apologised publicly for signing ACTA on behalf of her country without examining its consequences. Interestingly, she specifically cited a "barrage of questions in my inbox and on Facebook" as being an important factor in persuading her to take this action. That's a useful indication that such engagement does have an impact, provided it is courteous and personalised: rude or cut-and-paste communications can be counterproductive.
Meanwhile, inspired by the success of the Polish street demonstrations, pan-European events were organised. Two of the sites that helped beat the drum for these were Netzpolitik.org, particularly in Central and Eastern Europe, and La Quadrature du Net, covering more the Western side. These, along with the key Twitter account @StopACTA (which has now morphed into @PostACTA), acted as points of contact that large numbers of people used to stay abreast of the fast-moving events.
As a result of these and many other sites and people pushing out updates, huge numbers took to the streets on 11 February. It's hard to get reliable figures, but one thing is for sure: Germany's massive turnout was probably heading to six figures, while the UK's barely made it to four. It's sad that it's so hard to get people in this country motivated to do more than classical "slacktivism", something that requires them to move more than a finger. I fear that people have become complacent about basic freedoms in this country - perhaps in part because of Tony Blair's rebranding of "liberty" as "terrorism-enabling activities" when he was pushing through his many illiberal plans.
Fortunately, countries in the East of Europe are more sensitive to the value of freedom, and so an impressive roster of governments there halted ratification either after or even before the anti-ACTA demonstrations. These were the Czech Republic, Slovakia, Latvia, Germany, Bulgaria, Lithuania and Slovenia. This would seem to add weight to Woźniak's view that memories of life under totalitarian regimes played a part in getting people onto the streets, and halting ratification.
Of course, the European Commission was not prepared to sit back and watch its years of hard work pushing ACTA threatened in this way. Recognising that it needed to do something, but that it also needed to appear to be making a concession, it came up with the clever idea of asking the European Court of Justice to rule on a very specific aspect of ACTA: whether it was incompatible in any way with the EU's fundamental rights and freedoms.
That was shrewd for two reasons. First, most concerns had nothing to do with this issue, so it was possible that the ECJ would rule that ACTA was fine from that viewpoint, but that would do nothing to address the many other problems that lay in other areas. Secondly, the referral would take anything from 18 months to two years; the European Commission was clearly banking on people getting bored with ACTA in that time, which would allow a vote to be taken and won without problem.
There was some debate within the anti-ACTA community about whether things should be put on hold to await the ECJ decision, since many thought that there were indeed legal problems with ACTA. But Jérémie Zimmermann from La Quadrature du Net had no hesitation in rejecting the idea immediately, and advocated keeping up the pressure on MEPs for an early vote on ACTA.
That pressure was certainly mounting. As emails continued to flood MEPs' mailboxes, and more and more articles were written and tweets posted on the subject, the pressure began to show signs of working. On the 12 April, David Martin, the new ACTA rapporteur, issued his recommendation to reject ACTA, declaring: "ACTA raises more fears than hopes." The Socialists and Democrats also formally announced they would recommend voting against the treaty, a move echoed by the Liberals and Democrats a couple of weeks later.
Then the influential European Parliament committees started tumbling. On the 31 May, ITRE (Industry, Research, Energy), JURI (Legal affairs), and LIBE (Civil Liberties) all voted for rejection. Particularly notable was the results in JURI. This was headed by Marielle Gallo, a notorious copyright maximalist, and responsible for the eponymous report on the enforcement of intellectual monopolies in Europe. It's probably relevant that the Pirate Party MEP Amelia Andersdotter was also on that committee, and doubtless argued forcefully against ACTA.
On 21 June, the main INTA (International Trade) recommended against ACTA, making its rejection in the plenary vote of 4 July likely, but not certain. In the event, that turned into a full-scale rout, with 478 voting against, and just 39 in favour. In all, 165 abstained - a high figure reflecting both the cowardice of ACTA's supporters, and the extent to which ACTA had now become so toxic that few wanted to be seen voting for it.
As well as the scale of the defeat, also notable is the fact that the European Parliament had rejected an international treaty that had been negotiated by the European Commission - something that had never happened before. It was only possible because the Lisbon Treaty had given the European Parliament new powers that made this kind of assertiveness possible.
After this quick summary of what happened during the last 12 months in the world of ACTA, I concluded my talk by looking at some of the key lessons that we might learn from those events. Since they are distinct from the ACTA chronicle, I'll write them up in a separate post. For those who can't wait, they can be found in the penultimate slide in the embedded presentation below.