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With a focus on open source and digital rights, Simon is a director of the UK's Open Rights Group and president of the Open Source Initiative. He is also managing director of UK consulting firm Meshed Insights Ltd.

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How ACTA Nearly Won

ACTA was soundly beaten in the European Parliament, but we should study the lone stand-outs voting for it to understand what we're up against.

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First - a huge round of applause for all of you who contacted your MEP on the subject of ACTA. You won. I have heard from multiple sources that there has been an exceptional flood of e-mail and other correspondence on the subject into the boxes of every MEP. It worked.

When the Anti-counterfeiting Trade Agreement, ACTA, first reached the European Parliament, it looked like it was a fait accompli by the European Commission and by the secretive industry lobbyists who managed to harness the apparatus of political power globally to create this normative treaty. Today's vote showed the power of the people to change the minds of their representatives, with only 39 MEPs voting in favour of adopting ACTA. In the light of that opposition, how did ACTA even get this far?

Surprising Voter

To understand how the mechanisms of political power have been harnessed, let's consider the single vote from the United Kingdom in favour of ACTA. Yes, one British MEP voted in favour of ACTA (the rest voted against or abstained). In a vote where Conservatives, Labour, Liberal Democrats and even UKIP were unusually united, the one lone voter was actually Bill Newton Dunn, a Liberal Democrat MEP.

I found this a real surprise, as all the Liberal Democrats I have spoken to have opposed ACTA both on grounds of the process by which it was created and of the way it tries to set in stone the attitudes of the 20th century in areas of digital policy where it's clear we need reform. More than that, the party has been issuing explosively-titled press releases on the topic for ages; In April Liberals and Democrats reject ACTA; In June ALDE rejects a dangerous Treaty for civil liberties; and today's An ineffective agreement that puts civil liberties at risk. Indeed, a spokesperson for the ALDE group in the European Parliament told me:

The Liberal Democrat delegation in the European Parliament rejected ACTA because of concerns over internet freedoms and data protection but also because major developing countries such as India and China did not take part in the agreement in the first place. ... The Liberal Democrat delegation in the European Parliament has voted against ACTA in all Committees ... as well as in today's vote in plenary.


Their spokesperson made clear to me that "Mr Newton Dunn is not speaking on behalf of the Liberal Democrat delegation in the European Parliament on ACTA. He voted in favour of ACTA because of his own personal beliefs" although he had advised them of his intent beforehand. They said they were not planning any disciplinary action in this case as his vote was completely irrelevant against the tide of opposition. Indeed, UK Liberal Democrat MEP Catherine Bearder, the party's spokesperson on international trade in the European Parliament, commented after the vote:

"Today's rejection of ACTA sends out a clear message that civil liberties and civil society must be taken into account in the fight against counterfeiting and piracy. ... We must also be clear on our own EU standards before we can strike the right balance between civil rights and IPR protection in international agreements."

That all sounds pretty reasonable to me, so I wondered why Bill Newton Dunn did not embrace that position by his own party.

Hard Working Politician

Newton Dunn is not a typical Liberal Democrat. Originally elected as a Conservative MEP in 1979 and once the chair of the Conservative group in the European Parliament, he defected in 2000 to escape the euro-scepticism of the Tories and today is the Liberal Democrat MEP for the East Midlands. He's also gained a reputation as one of the hardest-working - and hardest-headed - MEPs you will ever encounter. With a Cambridge science education, and an initial career in the chemical industry at BOC and Fisons, he has maintained a grasp of the concerns of big business around the protection of copyright, patent and trademark rights.

His adult children, working in newspapers and TV, undoubtedly inform him of the concerns of the media industry, and his leadership role at the European Internet Foundation provides another channel for the concerns of the sponsors of the group - some of the largest corporations in the sector - to reach his ears. He's clearly persuaded by the many industrial voices he hears; he runs a BASF-sponsored breakfast to educate MEP's about the science behind various political issues that affect them.

There's no doubt he has sincere and well-informed concerns about actual counterfeiting issues. A recent article on counterfeit pesticides shows him informed and passionate on a genuine counterfeiting issue that deserves attention. His role as a member of the European Parliament’s new committee on organised crime, corruption and money laundering must expose him regularly to the actual abuses of proprietary rights that do indeed threaten Europe's citizens. They threaten both commercial profits and citizen safety..

Those abuses are indeed real, egregious and in the main the work of serious criminals who deserve the wrath of society to fall on them. Bill is keen to make that happen; he's called for "an EU version of the US’ Federal Bureau of Investigation", an unsurprising call from a Spinelli Group European federalist.

Harnessing Focus

The problem with ACTA is not - has never been - the sections that deal with making the world safe from the evils of organised criminal counterfeiting. It's that those genuine concerns have been harnessed by other interests to shape other, unrelated markets in their favour. The phrase "intellectual property" shares a significant part of the blame here.

By disguising the differences in intent and applicability of patents, copyrights, trademarks and trade secrets under a seductively appealing phrase, it was possible for companies in the media, content and software industries to harness the well-founded outrage of people like Bill Newton Dunn in manufacturing-based industries and have them drive forward measures which, if implemented, would have set the baseline for future legislation and regulation of the Internet firmly in the worldview of the 20th century.

By adjusting the definitions and hiding behind "intellectual property", the warriors of public safety and industrial justice were parasitised to do the business of the enemies of popular culture. It needed some intellectual cover, of course - people like Bill are anything but stupid - so the citizen-targets of this action were framed as "pirates", a word even associated with a political party so that the illusion of being an organised interest group could be complete. Indeed, when I called Newton Dunn's office, the word "pirate" was bandied about as part of the justification for his lone stand for ACTA.

Mr Newton Dunn replied briefly to my questions, but did not respond to my request for an interview. Giving him the benefit of the doubt, I assume him to be a sincere man with a focus that has been hijacked. There are 38 other people who voted in favour of ACTA despite its condemnation by five parliamentary committees and the decision of the main political blocks in the European Parliament not to endorse it. I would wager they are mostly in this same category. As European citizens, we need to come along side and help them understand the problem, if they will let us.

Democracy and Internet

That could be a challenge. I've heard several times a scepticism that the input from informed and concerned citizens via the Internet is somehow suspect. There's no doubt that, among all the genuine constituent input, MEPs are swamped with input from people they are not bound to listen to. The ALDE spokesperson said MEPs were drowning in unwanted communications from non-Europeans, and criticised the e-mails from Write To Them on the grounds that constituents were sending tirades aimed at dissenters like Newton Dunn even to the many MEPs already persuaded. Indeed, that seems to be between the lines of Newton Dunn's constituency newsletter where one might intuit scepticism about his e-mail inbox.

They also have some sympathy with the secrecy with which ACTA was negotiated - I was told by Newton Dunn's office that such secrecy was perfectly normal, and other MEPS have said "I don't think that people on the internet should be making up our minds for us." Yet these same people are happy enough to be fed legislative threads through member breakfasts, Brussels lobbyist briefings, and political clubs like IEF.

In the meshed society, where the topology of innovation is being forever changed by the Internet to include individuals as well as corporations, our democratic processes themselves are lacking. Newton Dunn recognises this himself, and speaks of "the democratic deficit" and the need to embrace social media (even if his Twitter account is dormant). I hope MEPs will come to see that the voices of the many who communicate with MEPs need channelling and empowering rather than stifling. The sheer volume is not a bug; it is a feature, awaiting proper implementation and embrace.

MEPs need to take this seriously, if the European Commission are to be believed. Commissioners De Gucht and Šefčovič seem to have every intent to ignore the landslide vote today and reintroduce ACTA in the future, after they've been able to get the European Court of Justice to comment on some of the details and pretend that makes the whole treaty safe. When that zombie rises from the legislative grave, MEPs will be deluged by a torrent of comment from ever-more informed constituents.

The European Parliament needs to get to work on an effective and respectful digital Pnyx before then, so we can all be heard instead of being classified as a single interest group and bracketed with the pirates. We are not an "interest group" - we are the people.


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