I. INTRODUCTION
The Anti-Counterfeiting Trade Agreement (ACTA) sought to augment intellectual property (IP) enforcement practices, to counter the proliferation of counterfeit and pirate goods and to regulate digital infringements.Footnote 1 This plurilateral treaty negotiated by Japan, the United States, the EU and its Member States, Australia, Canada, Korea, New Zealand, Morocco, Singapore, Mexico and Switzerland between October 2007 and December 2010 was to remain open for signature from 1 May 2011 until 1 May 2013.Footnote 2 Japan, the United States, Australia, Canada, Korea, New Zealand, Morocco and Singapore signed ACTA during a signing ceremony in Japan on 1 October 2011. The EU 22 Member StatesFootnote 3 and Mexico signed ACTA in January and July 2012 respectively, leaving Switzerland as the only ACTA negotiator that did not sign ACTA. It was agreed that the agreement would enter into force 30 days after the date of deposit of the sixth instrument of ratification, acceptance or approval.Footnote 4 Despite negotiating partners having committed ‘to work cooperatively to achieve the Agreement's prompt entry into force’,Footnote 5 Japan is the only country to have ratified it to date. In view of the persistent campaign against ACTA which has resulted in the rejection of the agreement by the EU Parliament, it can safely be stated that the agreement has died a political death.Footnote 6
It is necessary to analyse the failure of ACTA to enter into force, given that the plurilateral negotiating strategy between like-minded parties was deliberately deployed, in order to avoid the ‘development’ agenda being pursued within established IP norm-making bodies such as the World Intellectual Property Organisation (WIPO) and World Trade Organisation (WTO).Footnote 7 ACTA negotiators were portrayed as a ‘country-club’Footnote 8 engaging in ‘forum shifting’Footnote 9 strategies in order to create a new pillar of international IP institution that works in parallel with WIPO and WTO.Footnote 10 The pursuit of the ACTA provisions outside the existing IP structures was seen by commentators as a deliberate disengagement from the ‘development agenda’ mandated under the WIPO Development Agenda and the Doha Declaration on the TRIPS Agreement,Footnote 11 in favour of an alternative agenda dubbed the ‘enforcement agenda’.Footnote 12 The categorization of developed countries' goals as an ‘enforcement agenda’ illustrates the policy misalignment between the Global North and South and reinforces the existing notion that the proponents of the former are engaged in a process which undermines the agenda of the latter, despite its adoption by international IP norm-making bodies.
This paper examines the collapse of the ACTA and challenges the traditional orientation of the debate that revolves around the distinction between the ‘enforcement’ and ‘development’ agendas. Despite the fact that ACTA provisions could have had multilateral impact within world trade systems and affect countries other than the negotiating partners, concerns raised by developing countriesFootnote 13 did not have any influence over ACTA negotiations or its provisions.Footnote 14 In other words, the influence of the ‘development agenda’ was not instrumental in undercutting the growth of the ‘enforcement agenda’. On the contrary, ACTA collapsed from ‘within’. Indeed, the ACTA negotiators, mainly composed of developed countries, were unable to bring into effect a plurilateral anti-counterfeiting trade agreement, even though an alternative forum was created with the intent of ignoring disagreements traditionally presented by developing countries.
The collapse of ACTA was influenced and almost entirely scripted by civil society groups, academics, ‘netizens’Footnote 15 and legislators within ACTA negotiating countries, despite assurances that the provisions in the agreement were consistent with domestic legislation.Footnote 16 This paper argues that the failure of the ACTA should be attributed to the spontaneous emergence of a random configuration of activists, netizens and others pursuing an agenda that can be called the ‘network agenda’. The paper charts the extemporaneous and unorganized rise of the internet and networking community's pursuit of the so-called ‘network agenda’ which aimed to protect fundamental rights to privacy, data protection and freedom of speech within the digital medium.Footnote 17
Unlike the current debate on the global IP legal order that is generally limited to, and characterized by, the Global North-South considerations within the ‘enforcement’ and ‘development’ agendas—the ‘network agenda’, as identified in this article, cuts longitudinally through territorial configurations and squarely places the interests of the IP owner against those of the public. Despite the sporadic and decentralized character of the ‘network agenda,’ its distinctly singular message derailed ACTA and curtailed the powerful hold of the pro-IP lobbyists in influencing the evolution of the global IP order.Footnote 18 This demonstrates the potential of the ‘network agenda’ to dilute the existing polarities in the IP debate and to impact upon the dynamics of international intellectual property law. Further evidence of the viability and robustness of the ‘network agenda’ can be gleaned from an examination of its role in potentially influencing the IP chapter of the Trans-Pacific Partnership Agreement that is currently being negotiated as an international trade agreement.Footnote 19
Thus, the key argument laid out in this paper is that the events leading to the collapse of ACTA can be seen as the creation of a new agenda in IP discourse which has potentially significant implications for the dynamics of the international IP legal order. For the purposes of this argument, it is not necessary to undertake an examination of the substantive provisions of ACTA nor to take a position on whether or not they had the potential to affect the fundamental rights of the digital users.Footnote 20 Suffice to say, there was a general perception, justifiably or otherwise, that ACTA provisions had the potential to undermine the fundamental rights of digital users and this perception led to a chain of events resulting in its collapse.
The blueprint of this paper is as follows: the second section highlights the global consensus to curb IP infringement and examines the rationale of the ACTA negotiators in creating a new IP institution outside existing IP norm-making bodies. This section shows that ACTA's genesis as a plurilateral arrangement was a direct response to the failure to reach a consensus on IP enforcement issues at a multilateral level. Given that developed countries actively promote, as a political value, the same fundamental rights as those pursued by the proponents of the ‘network agenda’,Footnote 21 it is then not surprising that the schema to protect fundamental rights within the digital sphere developed within the philosophical and geographical parameters of the developed States. In addition, the fact that ACTA was a plurilateral agreement meant that other developing countries pursuing the ‘development agenda’ could not adversely affect either the negotiation process or the substantive provisions that were focussed on IP enforcement.
The third section examines the criticism levied at ACTA negotiators for negotiating under the protective cloak of a ‘confidentiality agreement’, ostensibly to ensure effective dialogue between participants. The lack of transparency in the ACTA negotiation process has been extensively covered in the literature.Footnote 22 As some stakeholders were denied access to negotiating documents, it was alleged that ACTA negotiators were engaging in ‘policy laundering’.Footnote 23 This section highlights the reasons that make it difficult to attribute the controversies surrounding the lack of transparency in the ACTA negotiation process to its ultimate collapse.Footnote 24 Nonetheless, it is likely to have had a significant impact on the creation of an ACTA-lite final text.
The fourth section focuses on the rejection of ACTA by the European Parliament in July 2012, despite prior commitments towards IP protection and enforcement and claims that the agreement could result in export, economic and employment gains.Footnote 25 Significantly, this was the first time that the European Parliament had used its Lisbon powers to reject the whole text of an international agreement negotiated by the European Commission with external partners.Footnote 26 The section examines how digital activism functioned as the tool to embed the ‘network agenda’, pursued by the internet and ‘networking society’,Footnote 27 into the fertile ground of inter-institutional dissonance in the EU. It argues that the ‘network agenda’ provided the ideal opportunity for the European Parliament, weighed down by assertions of ‘democratic deficit’, to project its bond with its citizens and simultaneously assert its Lisbon powers.
Despite Europe's rejection of the agreement, ACTA would have survived if six other signatories had ratified it. The vociferous opposition and debate against the agreement in Europe has adversely influenced other ACTA negotiating partnersFootnote 28 to the extent that to date only Japan has submitted formal instrument of ratification, amidst domestic protests for engaging in a hasty ratification process.Footnote 29 The fifth section therefore highlights the ripple effect caused by Europe's rejection of ACTA on other ACTA negotiating partners and which has stymied the ratification process.
The final section brings together the various strands of analysis and argues that the changing nature of the digital landscape exposes colliding rationalities, as the protection of proprietary interests vested in intellectual property conflicts with the protection of individual and systemic freedom within cyberspace structures. While the debate between the enforcement agenda and the development agenda has so far appeared to rest on territorial configurations, the demise of the ACTA is an indicator of the need to shift the debate at a longitudinal level that includes a conflux of the enforcement, development and network agendas. Thus, the IP debate will need to move beyond the realm of bi-, pluri- and multilateral discussion based on territorial stratagem to an inclusive platform that attempts to integrate colliding rationalities of different stakeholder constituencies in the world society.Footnote 30
II. ACTA GENESIS: FROM DEVELOPMENT TO ENFORCEMENT AGENDA
A. Global Consensus to Curb IP Infringement
Though IP infringement affects consumers, industry, government and the economy as a whole, there are not many studies that produce original estimates of the magnitude of ‘counterfeiting’ and ‘piracy’, mainly due to the intrinsic difficulty in creating a reliable methodology that quantifies clandestine activity.Footnote 31 However, discussions on intellectual property rights (IPR) enforcement are invariably preceded by statistics that offer estimates of the economic losses caused by the presence of ‘counterfeit and pirated products' in international trade.Footnote 32 In 2005, the OECD undertook a comprehensive study and in their 2008 report concluded that the value of IP infringing goods in international trade equalled $200 billion annually (updated in 2009 to $250 billion).Footnote 33 The OECD calculation gained wide acceptance, though more recently these figures have been discredited on the basis that the calculation relied, to some extent, on statistics and sources of uncertain origin.Footnote 34 The International Chamber of Commerce estimates that ‘counterfeiting accounts for between 5–7 per cent of world trade’.Footnote 35 Once again, this calculation is based on data that are not strictly underpinned by adequate research or statistical analysis.Footnote 36 The 2011 Frontier Economics Report merely adopts the OECD methodology and updates the 2008 OECD Report.Footnote 37 All these estimates and impact studies have been criticized for lacking rigorous methodologies especially because they rely on data that is sparse, incomplete or inconsistent.Footnote 38 The problem is compounded by research that indicates potential gains made by the industries affected by ‘counterfeiting’ and ‘piracy’.Footnote 39 Indeed, the figure of the $200 billion loss appears to have been officially used as early as 1995, without being substantiated by a clear-cut methodology.Footnote 40 Despite the difficulty in calculating the economic impact of IP infringement, there is general agreement among developed and developing countriesFootnote 41 that the legal framework to protect IP rights should be complemented by effective enforcement measures in order to provide the incentives to promote innovation and stem economic losses faced by IP right-holders in developing countries.Footnote 42 Indeed, the broad aim of curbing counterfeiting and piracy reflects global consensus evidenced by the participation of intergovernmental organizations, national governments, enforcement agencies and businesses from more than 100 countries at the meetings of the Global Congress on Combating Counterfeiting and Piracy (GCCCP).Footnote 43
B. The Move towards a Plurilateral Agreement
The first GCCCP met in 2004 with the aim of consolidating anti-counterfeiting measures and towards this end, it sought to improve international cooperation between governments and organizations.Footnote 44 Similarly, ACTA's aim to provide protection against digital infringement is roughly in alignment with the aims of WIPO's 1996 ‘Internet Treaties’ and is bolstered by the WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement provision for minimum standards of IP rights protection.Footnote 45 However, the WIPO Internet Treaties and WTO TRIPS had not anticipated the generational shift that has taken place in the digital environment over the last decade and face significant challenges in dealing with new and emerging technologies. Though the WTO incorporates compliance issues to be addressed through the Dispute Settlement Body, the ever-growing trade in IP infringements had led developed countries to attempt to form a multi-party enforcement arrangement since 2005.Footnote 46
It was within this context that the initial idea of a new anti-counterfeiting treaty was proposed by Japan at the Gleneagles Summit Meeting of the Group of Eight (G8) in 2005.Footnote 47 Japan made an official presentation of the idea of a new treaty entitled ‘Treaty on Non-Proliferation of Counterfeits and Pirated Goods’ at the Second GCCCP in 2005 in Lyon and proposed that the treaty could function under either one of the key conveners of the Congress—World Customs Organisation or International Criminal Police Organisation. There was a general consensus at the Lyon GCCCP that the TRIPS Agreement was ‘inadequate[ly]’ dealing with counterfeiting issues, and it agreed to ‘consider further’ the proposal by Japan to introduce a new international treaty on counterfeiting and piracy.Footnote 48 Japan proposed the treaty once again at the Third GCCCP held in Geneva in 2006, but there was muted response to the need for a new treaty.Footnote 49 Though initially reluctant,Footnote 50 the US endorsed Japan's proposal in 2006 and began to reach out to other partners to develop the idea.Footnote 51 This change in strategy was in response to the failure by developed countries to introduce a discussion on IP enforcement within WIPO and WTO, as their attempts were thwarted by developing countries on the basis that it was necessary to integrate the ‘development dimension’ into IP policy making at the international level.Footnote 52 More specifically, efforts since June 2005 by Japan, Switzerland, the EU and the USFootnote 53 to introduce enforcement issues on the TRIPS agenda were unsuccessful as developing countries argued that the TRIPS Council was ‘not the right forum’ to discuss IP enforcement and it could not be a ‘permanent agenda’ of the Council.Footnote 54
Furthermore, developed countries felt that WIPO was also not adequately ‘meeting the needs and expectations of its members’ as its ‘Advisory Committee on Enforcement‘(ACE),Footnote 55 which was set up in October 2002, deliberately excluded norm-making capacity and provided a restrictive mandate limited to education, technical assistance, training programmes and coordination in relation to enforcement of IP rights.Footnote 56 The adoption of the WIPO Development Agenda coincided with Japan not being able to introduce a proposal on border enforcement of IP rights in October 2007.Footnote 57 Developing countries cautioned against IP enforcement measures that would result in ‘disguised barriers to trade’, especially from developing countries.Footnote 58 The fact that the US, EU and Japan began pre-negotiation technical discussion immediately after the 2007 WIPO General Assembly,Footnote 59 and formally announced their intention to negotiate ACTA within two weeks of the adoption of the WIPO ‘Development Agenda’, illustrates the discontent of developed countries regarding the effectiveness of WIPO to deal with IP infringement on a global level.Footnote 60 Indeed, developed countries have clarified that it had become necessary to seek out their own forum to discuss enforcement issues due to the unwillingness of developing countries to engage with the issue in the established norm-making bodies.Footnote 61 It is the growing perception that the emphasis on the ‘development agenda’ was stymieing efforts to combat IP infringement that led ACTA negotiators to create a plurilateral platform outside the aegis of the established norm-making bodies.Footnote 62 The new agreement aimed to provide civil, criminal and border measures to enhance IP enforcement and curb the proliferation of ‘counterfeit’ and ‘pirated’ products.
C. Effect of Opposition by Developing Countries
The June 2010 TRIPS Council Meeting eventually placed enforcement issues on the agenda, this time, however, at the behest of developing countries in order to discuss their concerns regarding ACTA. Here, China and India criticized the ‘efforts by developed countries’ to engage in a ‘TRIPS-plus enforcement trend’ outside of the existing multilateral framework.Footnote 63 The ACTA negotiators countered that WTO members ‘should not be surprised’ to see measures for a plurilateral arrangement to deal with IP enforcement, as the issue had been repeatedly ignored by previous TRIPS Councils.Footnote 64 The Indian and Indonesian delegations once again discussed the implications of ACTA in the October 2010 TRIPS Council.Footnote 65 However, ACTA negotiators merely encouraged WTO members to join ACTA, and the EU delegation took the opportunity once again to clarify why ACTA negotiators felt forced to seek out a new platform to promote enforcement issues.Footnote 66 The Sixth GCCCP meeting in 2011 involved a discussion panel to debate issues relating to ACTA.Footnote 67 Here, India questioned the asymmetrics of the negotiating process, the balancing of provisions between rights-owners and the public and furthermore expressed concern that the plurilateral agreement had multilateral manifestations.Footnote 68 Overall, the broad picture that emerges is that the opposition by developing countries within the WTO and WIPO forums did not have a substantive effect on the ACTA negotiation process nor on the agreement itself, mainly because it was being formulated at the plurilateral level.Footnote 69
The above position is reaffirmed in the letter from the WTO General Secretary in response to Members of the European Parliament requesting that WIPO and WTO provide an ‘expert assessment and analysis of the current provisions of ACTA’.Footnote 70 The MEPs were motivated by their ‘disappointment that ACTA had bypassed the multilateral WTO and WIPO institutions’.Footnote 71 There is a record of the reply in May 2010 by the WTO General Secretary, making it clear that since ACTA is a plurilateral agreement, the organization is unwilling to provide technical assistance or comment on its provisions.Footnote 72 Thus, it is clear that ACTA negotiators had successfully insulated themselves from acknowledging the development agenda by manoeuvring their strategy and engaging in forum shifting.Footnote 73 However, they faced stinging criticism for negotiating under the cloak of a ‘confidentiality agreement’ and thus creating unequal access to the negotiation process for stakeholders.
III. TRANSPARENCY ISSUES AND THE MAKING OF AN ‘ACTA-LITE’
The criticism against ACTA that the negotiations lacked transparency stemmed from the protection granted to the negotiation proceedings via a confidentiality agreement set to last ten years.Footnote 74 The general premise of the negotiators was that the ‘confidentiality agreement’ would enable negotiators to engage in frank exchange of views, positions and specific negotiating proposals.Footnote 75 In May 2008, a discussion paper on ACTA was made available to the public by Wikileaks.Footnote 76 Civil society groups in the US and Europe that felt excluded from the process began submitting Freedom of Information requests to seek information on the negotiation process.Footnote 77 The Office of the United States Trade Representative (USTR) sought to look into their legislationFootnote 78 and legislative historyFootnote 79 to argue that the negotiating documents could be exempt from disclosure under the US Freedom of Information Act on grounds of ‘national security’ and confidential ‘foreign government information’.Footnote 80 They argued that release of the materials sought would result in ‘strained relations between the United States and foreign governments, leading to diplomatic, political, or economic repercussions’.Footnote 81 Similarly in Europe, the EU Council of Ministers denied requests for ACTA-related documentation on the basis of a need to protect the public interest ‘with regard to international relations’.Footnote 82
The lack of communication with the public was also causing general concern within the ACTA negotiating spaceFootnote 83 and partners were concerned that the ‘secrecy around the negotiations has led to the legitimacy of the whole process being questioned’.Footnote 84 Interestingly, the Wikileaks US embassy cables refer to EU Member States accusing the US government of being in ‘close consultations with US industry’ while constraining other negotiating partners, through the confidentiality agreement, from engaging with their domestic industry to discuss the ACTA provisions.Footnote 85 The secrecy that shrouded ACTA resulted in the provision of unequal access to various stakeholders as ‘select lobbyists in the intellectual property industry’ were invited to contribute to the negotiations.Footnote 86 Indeed, as required under US legislation, USTR called for a consultative process in relation to ACTA provisions, with federal agencies and advisors,Footnote 87 and sought recommendations from private organizations or groups whose interests may not be fully represented by advisory committees.Footnote 88
Another ‘leak’ appeared in February 2009, highlighting the six chapters that eventually appear in the final text, with a focus on the chapter relating to the enforcement of IP rights. Following this leak, the European Commission organized conferences on ACTA that took place on 23 June 2008 and 21 April 2009.Footnote 89 However, these sessions did not include any details of the ACTA negotiations nor the position taken by various countries during the negotiating process. The position taken by ACTA negotiators ignored the Court of Justice of the European Union's (CJEU) position regarding the fact that openness confers legitimacy on institutions.Footnote 90 In November 2009, ACTA negotiating partners released a statement that ‘it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation’.Footnote 91 Commentators refuted this position on the basis that other agreements, such as the WIPO Internet Treaties, were made readily available to the public in advance of the final agreement.Footnote 92
An extended pool of stakeholders was thereupon given access to some provisions in the ACTA draft. However, the requirement to sign a non-disclosure agreement, along with not providing them with the opportunity to provide input in a meaningful way meant that there was still not sufficient transparency in the process.Footnote 93 The outcry that the secrecy in the negotiation process was an attempt to engage in policy laundering was followed by two further leaks: the ‘18 January 2010 Consolidated Text’ leak in March 2010Footnote 94 and the internal Dutch government documents describing the positions of the ACTA participants on treaty transparency.Footnote 95 The leaked documents indicated that ACTA had set out to be a new ‘state-of-the-art’Footnote 96 agreement with enhanced criminal and border measures, provision for intermediary liability outside the court's jurisdiction, provision for internet service providers to monitor networks for copyright infringement and adopt the ‘three-strikes-internet disconnection’ policy. The ‘secret’ nature of the negotiation enhanced scrutiny of the various provisions as seen in the leaked documents. Legislators from Canada, France, Germany, New Zealand, US and Sweden began openly to seek for the agreement to be made public.Footnote 97 ACTA negotiators attempted to graft some degree of legitimacy to the process by conducting workshops and public consultations though they did not provide the draft texts.Footnote 98 The position taken by ACTA negotiators—that the process was being kept confidential to promote political expediency—was rejected by academics and civil society groups such as Electronic Frontier Foundation, IP Left, Knowledge Ecology International, Free Information Infrastructure, La Quadrature du Net and Public Knowledge.Footnote 99 The problem was exacerbated when the European Parliament adopted a Resolution in March 2010 calling on the Commission to make ACTA documents public and increase the Parliament's role in negotiating ACTA provisions.Footnote 100 As a result, ACTA negotiating partners officially released the draft text of the agreement for the first time in April 2010. Interestingly, ACTA negotiators did not release updated texts from the July 2010 ACTA Lucerne round or the August 2010 ACTA Washington round of negotiations. The final draft was released by ACTA negotiators after negotiations concluded in October 2010.Footnote 101
Despite the workshops and the draft texts, the secrecy raised fear that ACTA would make travellers vulnerable to intrusive border checks by customs officials, as there was no clear definition of what would constitute a ‘commercial’ level of piracy. There was paranoia within internet communities that the border police could potentially ‘seize any device—laptop, iPod, DVD recorder, mobile phone, etc—and confiscate it or destroy anything on it, merely on suspicion’.Footnote 102 US officials and EU officials were hard pressed to reply to queries regarding border police search of consumers' personal computers or music players.Footnote 103 These concerns were addressed in the final text, which included a specific de minimis provision to exempt small consignments and personal luggage.Footnote 104 There is no doubt that the intense scrutiny of the provisions led to the final product being a watered-down ‘ACTA-lite’ agreement.Footnote 105 For instance, the final text did not include the ‘graduated response’ system for combating file sharing on the internet, and furthermore provides for rules intended to guarantee balance in procedures. This may be seen in Article 2(3) ACTA whereby objectives and principles of the TRIPS agreement (particularly Articles 7 and 8), shall apply, mutatis mutandis, to ACTA; Article 6(2) ACTA adopts the implementation of ‘fair’ and ‘equitable’ procedures with regard to IP enforcement; Article 6(3) ACTA sets out the principle of proportionality and Article 27(2) ACTA calls for the preservation of fundamental principles such as freedom of expression, fair process and privacy in procedures for copyright enforcement in digital networks. Thus, the initial attempt to insulate the agreement from public discussions by means of a ‘confidentiality agreement’ had backfired dramatically, and though it did not per se cause the agreement to collapse, it did have the effect of ‘watering down’ the text from what had originally been conceived into an ‘ACTA-lite’ version.
Cameron Kerry, former General Counsel of the US Department of Commerce stated that in his opinion ACTA was a good balance between IP rights and freedom of expression; but the public protests had led to the situation where ‘rhetoric ha[d] exceeded the reality’.Footnote 106 Similarly, EU Trade Commissioner Karel De Gucht found the debate on ACTA to be based on ‘misinformation and rumour that has dominated social media sites and blogs in recent weeks’.Footnote 107 This was confirmed by the European Commission Vice-President, Maroš Šefčovič, who stated that the ACTA debacle highlights the importance of social media and the need for the Commission to be much more communicative with the public.Footnote 108 Even so, most of the ACTA negotiating partners had signed the ACTA-lite version by October 2011 and it was not until January 2012, when the EU signed ACTA that the momentum against the agreement gathered pace in the EU and eventually led to its rejection by the European Parliament. Thus, whilst lack of transparency was a factor that contributed to the collapse of ACTA, it was not the catalyst that triggered the rejection of ACTA in Europe.
IV. EUROPE AND ITS REJECTION OF ACTA
A. Europe's Commitment to IP Enforcement
Combating IP infringement has been one of the key priorities on the European IP agenda, alongside harmonization of IP legislation and creation of unitary IPR rights within the EU. The 1998 Green Paper on Combating Counterfeiting and Piracy in the Single Market and its follow-up in 2000 recognized the need to strengthen IP enforcement as a matter of urgency, and to revise policies for customs officials to deal with infringing products coming into the EU.Footnote 109 These goals were promoted via the 2003 Customs Regulations,Footnote 110 and the 2004 Enforcement Directive.Footnote 111 As part of its strategy to curb infringement of IP rights occurring outside of Europe, it was clarified that there was no intention to ‘impose unilateral solutions to the problem’.Footnote 112 More steps followed, such as the 2006 US-EU Action Strategy for the Enforcement of IP Rights and the 2006 Council Resolution on the Customs Response to latest trends in counterfeiting and piracy.Footnote 113 In 2009, the European Commission set up the European Observatory on Counterfeiting and Piracy to improve understanding on IP rights infringement.Footnote 114 Further proposals have been put forth recently with regard to improving customs enforcement of IP rights.Footnote 115 The measures taken by the European Council, the Commission and the Parliament show that the EU deals with the issue of enforcement of the IP owner's rights in a proactive manner.Footnote 116 However, they have also acknowledged that the EU legislation may be ill-suited to deal with the challenges posed by the internet and digital technologies.Footnote 117 Therefore, it was natural to see Europe joining the negotiating table to discuss the enactment of the ACTA, a new international agreement to deal with IP enforcement and issues relating to protection of IP rights in the digital era. The rejection of ACTA by the European Parliament proved to be a fatal blow to the cause of the ratification of the agreement by the other ACTA signatories. The next subsection examines how ‘netizen’ involvement, within the context of the ongoing general debate on the ‘democratic deficit’ within EU institutions, provided the catapult power to launch the ‘network agenda’. In other words, it is argued that the successful embedding of the ‘network agenda’ into the fertile ground of existing inter-institutional dissonance within the EU resulted in the rejection of the ACTA in Europe.
B. The Impact of Digital Activism in Europe
The internet networking community in Europe was concerned that ACTA could potentially affect fundamental rights such as the right to data privacy and freedom of speech and expression. It resulted from the fear that the application of ACTA in the digital world would threaten human rights and make the regular surveillance of web users a real possibility. Though the networking community and various civil society bodies had regularly castigated ACTA provisions and procedures, there was a dramatic change in January 2012 when the EU signed ACTA. The cause of the network agenda appears to have been strengthened by the collapse (in January 2012) of the Stop Online Piracy Act (SOPA)Footnote 118 and the Preventing Real Online Threats to Economic Creativity and Theft of IP Act (PIPA)Footnote 119 in the US.Footnote 120
The SOPA and PIPA bills, backed by the entertainment industry were introduced into the US House of Representatives and the US Senate in 2011 to deal with enforcement of US laws against websites originating outside US. The bills were opposed by an assorted alliance of various technology and internet firms and associations, digital rights groups, social network sites, content creators, free-software authors and free speech organizations, as well as by the public at large. In response to two online petitions against SOPA, on 13 January 2012, the White House announced that it would ‘not support legislation that reduces freedom of expression, increases cyber-security risk, or undermines the dynamic, innovative global internet’.Footnote 121 On 18 January 2012, a series of online protests and street demonstrations were launched in a coordinated manner in response to the prospect of the imminent enactment of this legislation which enjoyed overwhelming bipartisan support.Footnote 122 On this day, the English Wikipedia temporarily blacked out its own contents aiming to ‘raise public awareness and to encourage people to share their views with their elected representatives’.Footnote 123 The Wikipedia blackout page was accessed more than 162 million times during the 24-hour period with the effect that more than eight million looked up their elected representatives' contact information via the Wikipedia tool.Footnote 124 Google joined the protest by draping its search site trademark in black and directing visitors to visit a webpage on SOPA/PIPA and sign a petition opposing the bills.Footnote 125 Other websites, such as Mozilla, Flickr, Craigslist and Reddit, also joined the protest with the result that by the end of the day on 18 January 2012, co-sponsors of the bills began to withdraw support, thus leaving SOPA and PIPA on the backburner.Footnote 126
Buoyed by the success of derailing SOPA/PIPA, civil society organizations and ‘netizens’ triggered online and offline protests to fight against ACTA provisions that could potentially affect the fundamental rights of the networking community.Footnote 127 Just before signing was due to take place on 25 January 2012 (barely a week from the SOPA/PIPA debacle), protests gained momentum with thousands of protesters gathering in a number of cities, including Warsaw and Krakow, and ‘hacktivists’Footnote 128 attacking Polish Government websites.Footnote 129 The Polish Government issued a statement that it ‘would not submit to blackmail’ and went ahead to sign the ACTA along with the EU and 22 other Member States as scheduled.Footnote 130
The signing of ACTA sparked an immediate reaction from bloggers and internet campaigners who adopted various measures to register their protest across Europe, including a series of hacks against various governmental websites, led by a group known as Anonymous— known for protesting against censorship and anti-piracy laws.Footnote 131 Public interest organizations and civic society groups alleged that the agreement did not safeguard fundamental freedoms and rights in a substantive manner and thus affected human rights, consumer protection, competition and privacy.Footnote 132 The protest acquired a degree of symbolism when many of the protesters, including Parliamentarians in some EU Member StatesFootnote 133 wore Guy FawkesFootnote 134 masks, which are associated with anarchists challenging authoritarian governments—as seen in a 2006 Warner Brothers movie entitled ‘V for Vendetta’. Though these masks had been popularized by Anonymous, it is not clear whether the public, or Parliamentarians, wearing these masks during ACTA demonstrations had in any way integrated the ‘hactivist’ form of protest. Moreover there is no evidence that this constituency was connected with, or remotely involved in, the legally questionable tactics of the Anonymous group. The general call of the protest was, however, clear—the internet and networking community sought the European Parliament's intervention to ensure protection of fundamental rights granted under the European Charter of Fundamental Rights, such as the right to free speech and expression, data privacy rights and due process rights.Footnote 135
The protests gained a measure of success when some EU Member States (Cyprus, Estonia, Germany, the Netherlands and Slovakia) decided not to sign ACTA until the European Parliament had voted on it. Meanwhile, Member States that had signed the ACTA, such as Poland, Czech Republic, Latvia, Romania and Austria, responded to the public protest by suspending ratification process.Footnote 136 Slovenia's ambassador to Japan went as far as apologizing for her ‘civic carelessness’ in signing the ACTA without paying ‘enough attention’.Footnote 137 Members of the European Parliament therefore proceeded to post several queries regarding ACTA to the Commission and obtained clarification on how ACTA ensured the protection of fundamental rights and freedoms.Footnote 138 Meanwhile, the public protests in Europe culminated in a petition, signed by about two and half million people in March 2012, urging the European Parliament to reject ACTA.Footnote 139 The European Commission were eventually resigned to the fact that their inability to give a timely response to domestic protests had left the agreement ‘twisted and misunderstood’.Footnote 140 In February 2012, the Commission proposed that the agreement could be taken to the CJEU for an opinion under Article 218(11) TFEU. It is within this context that the inter-institutional dissonance within EU institutions is examined to question whether it had an effect on the eventual decision of the Parliament to reject ACTA in July 2012 or if it was simply an illustration of democracy at work.
C. Inter-Institutional Dissonance in the EU
When the Lisbon treaty came into effect on 1 December 2009, it resulted in a significant restructuring of the power balance and thus, further changing the inter-institutional relationship within the EU, by placing the European Parliament on equal footing with the Council.Footnote 141 The European Council is no longer the final stage in the decision-making process, though, as the body which ensures the integration of policies, it is required to steer strategy and manage the interdependence between Member States and the EU. The ‘European Parliament Rules of Procedure’Footnote 142 and the ‘Framework Agreement Establishing the Relation between the Parliament and Commission’Footnote 143 clarify that though the Commission will represent the EU during negotiations, the Parliament is to be kept immediately and fully informed at all stages of negotiation and on conclusion of any international agreements, irrespective of the conclusion of international agreements requiring Parliamentary consent.Footnote 144 Significantly, the ‘Framework Agreement’ was rejected by the Council on the basis that the Parliament was appropriating more power than allowed under the Treaty on the Functioning of the European Union (TFEU) and limiting the autonomy of the Commission and its President.Footnote 145 This is an important illustration of how the Lisbon restructuring resulted in an institutional collision that feeds into the existing and pervasive dissonance within EU institutions.Footnote 146
With regard to ACTA negotiations, the EU did not enjoy absolute competence to negotiate on behalf of the Member States, as ACTA provisions included criminal enforcement measures for which EU enjoyed limited competence.Footnote 147 Therefore, the ACTA is a ‘mixed agreement’Footnote 148 that would take effect within the EU only if it was ratified both by the European Parliament and by every Member State of the EU.Footnote 149 The Commission submitted the initial Recommendation to the Council for authorization to negotiate ACTA in November 2007 but, for reasons not yet declassified, a revised Recommendation had to be submitted in February 2008.Footnote 150 Until it received the mandate to negotiate from the Council, the Commission participated in ACTA negotiations in ‘silent mode’.Footnote 151 The ‘confidentiality agreement’ signed by the Commission meant that the ‘European Parliament … had no access to [ACTA] mandate, neither had it information of the position defended by the Commission or the demands of the other parties to the agreement’.Footnote 152 Though it came into being only after the confidentiality agreement had been signed, the Framework Agreement required that the Parliament be kept ‘immediately and fully informed at all stages of the negotiation’ of an international agreement. The delicate power balance between the EU institutions was destabilized when the European Parliament went so far as to adopt a Resolution in March 2010, calling on the Commission to make ACTA documents public and to increase the Parliament's role in negotiating the contents of the Agreement.Footnote 153 The Parliament Resolution deplored ‘the calculated choice of the parties not to negotiate through well-established international bodies, such as WIPO and WTO’, and expressed ‘concern over the lack of a transparent process in the conduct of the ACTA negotiations’ which it clarified as being a state of affairs at odds with the letter and spirit of the TFEU. The Parliament's Resolution succeeded in eliciting the release of the draft text of the agreement in April 2010, but not the subsequent two negotiation texts until after negotiations were completed in October 2010. The final version of the agreement was released in October 2010 and the European Commission assured the European Parliament that it would receive all relevant trade policy documents that are shared with the Council's Trade Policy Committee.Footnote 154
Though the Parliament had registered its displeasure with regard to ‘lack of transparency’ in relation to ACTA in its March 2010 Resolution, it had stepped back from its confrontational attitude and made an attempt to re-establish the delicate balance of powers between EU institutions by October 2010 when ACTA negotiations were complete. This is evident from the Parliament's November 2010 Resolution which welcomed the release of the October 2010 draft ACTA, reiterated that combating counterfeiting is a priority in the EU's internal and international political strategy, acknowledged that ACTA was a ‘step in the right direction’ and welcomed the Commission's statements that ACTA provisions are fully in line with the acquis communautaire.Footnote 155 Furthermore, the Resolution considered ‘ACTA as a tool for making the existing standards more effective, thus benefiting EU exports and protecting right-holders when they operate in the global market, where they currently suffer systematic and widespread infringement of their copyrights, trademarks, patents, designs and GIs.’Footnote 156 With regard to the issue of fundamental rights, the Resolution went no further than to call on the Commission to ‘confirm that ACTA's implementation will have no impact on fundamental rights and data protection’ and finally instructed its President to ‘forward this resolution to the Council, the Commission and the governments and parliaments of the state parties to the ACTA negotiations.’Footnote 157 Clearly, the power differential between institutions in Europe was not sufficient to derail the ACTA process, and it needed an external irritant to trigger the tilt in the balance of power. Within this context, citizen protests culminating in the submission of a petition in March 2012 with two and half million signatures urging the Parliament to reject ACTA provided the ideal opportunity for the Parliament to not only demonstrate its Lisbon powers but also simultaneously project its bond with the citizens at a period when it was persistently dogged with the allegation of ‘democratic deficit’.
D. Embedding the ‘Network Agenda’ in the Fertile Ground of Inter-Institutional Dissonance
The European institutions have evolved over the decades, though they persistently face concerns regarding their ‘democratic deficit’.Footnote 158 In response to this challenge, the European Constitutional Convention had established the principle of ‘participatory democracy’ as an additional pillar, next to the principle of ‘representative democracy’ with a view to making the Parliament work closely with European civil society.Footnote 159 Similarly, the Europe 2020 Strategy Paper envisages a clear demarcation of the role of the Council, Parliament, Council of Ministers and Commission in addition to national parliaments, stakeholders and civil society.Footnote 160 It highlights the European Parliament's dual role as co-legislator and ‘also as a driving force for mobilising citizens and its national parliaments’. However, historical accounts of the involvement of civil society in Europe indicate that actors ‘were driven by (institutional) self-interest as much as by principled beliefs’ thus resulting in conflicts, ‘though it would not have been “politically correct” to question the democratic virtues for civil society involvement’ given that it was the remedy to the legitimacy crisis.Footnote 161 With the definition for civil society being rather vague, the democratic quality of the European institutions have come in for further scrutiny on the basis that most of the ‘organized’ civil society supported by public funds from Europe were ‘elitist’, having no real connection with citizens and yet purporting to support European integration.Footnote 162
When ACTA was signed by the EU in January 2012, tens of thousands of European citizens across several cities in Europe, including Warsaw, Prague, Bratislava, Bucharest, Vilnius, Paris, Brussels, Sofia, Cluj, Zagreb, Split, Rijeka, London and Dublin, protested on the streets leading the European Parliament president, Martin Schulz, to state that the ACTA is not ‘good in its current form’.Footnote 163 Indeed the European Parliament's rapporteur for ACTA, Kader Arif, resigned in protest to denounce ‘in the strongest manner, the process that led to the signing of this agreement’ which he termed as a ‘masquerade’.Footnote 164 Kader Arif accused the Commission for not consulting with civil society and engaging in lack of transparency since the beginning of ACTA negotiations.Footnote 165 Stavros Lambrinidis, then vice-president of the European Parliament, expressed Parliament's disconnect with the Commission when he stated that the ‘Parliament will not sit back silently while the fundamental rights of millions of citizens are being negotiated away behind closed doors’ and that the MEPs would ‘oppose any ‘legislation laundering on an international level of what would be very difficult to get through most national legislatures or the European Parliament’.Footnote 166 Concerns of ‘policy laundering’ had merit even if ACTA did not require changes in current domestic legislation. This is because the agreement would have had the potential to affect future legislation in Europe, as it would have become necessary to chart future reforms on the path drawn out by the international agreements, if Europe had committed itself to it.Footnote 167
The Commission finally sought the opinion of the Court of Justice of the EU in May 2012 on whether or not ACTA provisions interfered with EU legislation, especially the EU Charter on Fundamental Freedoms, but the European Parliament refused to wait until the Court delivered its opinion.Footnote 168 The European Parliament stated that whilst it would have been ideal to seek a legal opinion on ACTA at an earlier stage, it was no longer an option under the current circumstances where a referral would mean a delay of about one to two years.Footnote 169 Since it is the Parliament that has the final say in approving the international treaty, with no scope to require changes, they maintained that they had the political responsibility to vote on ACTA ratification, given the strong views held against it by the citizens of the EU.Footnote 170 In July 2012, the European Parliament voted overwhelmingly to reject ACTA. The Commission did not immediately withdraw its request for an opinion from the CJEU as it may have retained some hope that the Court might have aided the process of rejuvenating the agreement by declaring it to be in alignment with European fundamental rights. However, in December 2012, the request for a Court opinion was eventually withdrawn—thus endorsing the death of ACTA in Europe.Footnote 171 The rejection of ACTA in Europe is thus an illustration of the Parliament appropriating the ‘network’ agenda, espoused by the European citizens, to demonstrate its power among European institutions. As stated by Martin Schulz, the president of the European Parliament, ACTA's rejection is a ‘milestone for European democracy’ as ‘Europe's people look to the European Parliament as their forum, the place where their will is represented, and thus where democracy in the EU is safeguarded. That makes the European Parliament an institution that everyone must take into account.’Footnote 172 The rejection of the ACTA by the European Parliament was thus a show of its bond with the concerns of European citizens.
However, ACTA's death in Europe did not necessarily mean the death of the agreement on a global level. The question is whether Europe's rejection of the ACTA irreparably damaged the prospect of the agreement coming into effect as a result of its being ratified by six other ACTA signatories.Footnote 173 However, the ACTA negotiating partners appear to have been influenced by the vociferous debate against the agreement in Europe and have decided not to proceed with the ratification process within their own jurisdictions.Footnote 174 For example, having noted the opposition and debate against the Agreement in the EU, Switzerland decided to indefinitely defer signing the ACTA.Footnote 175 With Europe and Switzerland out of the picture by July 2012, in relation to ACTA ratification, the US in tandem with Japan, began to focus on other signatories to ‘ensure that ACTA can come into force as soon as possible’.Footnote 176
V. POSITION OF OTHER ACTA NEGOTIATORS REGARDING RATIFICATION
A. South Korea and Singapore: ‘Advanced Economies’
Two signatories that could potentially have completed the ratification process were Singapore and South Korea. Although not falling under the definition of ‘developed country’ under the WTO self-reporting requirement, both these countries have been classified as ‘High-Income Economies’ and as ‘Advanced Economies’ by the World Bank and International Monetary Fund respectively.Footnote 177 Both Singapore and South Korea were concerned about the disclosure of their negotiating positions during ACTA negotiations and hence were keen to continue to keep ACTA documents confidential.Footnote 178 It appears that the fear of disclosing ACTA provisions and negotiation dialogues were mainly due to fears of a political backlash within their respective home countries, anticipated due to the criticism that they had faced during past negotiation of Free Trade Agreements (FTAs) with the United States.Footnote 179 This was especially the case in relation to the South Korea–EU FTA that came into force in July 2011.Footnote 180 Several ACTA type provisions were already made available in the US–Korea FTA. The implementation of these FTAs has resulted in higher levels of criminal copyright enforcement, but the increasing numbers have been attributed to misuse of criminal provisions rather than to an increase in copyright infringement.Footnote 181 Indeed, though ACTA provides TRIPS-plus provisions, South Korea acknowledged that ACTA establishes standards that are lower than those provided under the US and EU Free Trade Agreements, thus making it unnecessary to make any changes or create additional legislative provisions in Korean legislation.Footnote 182
Singapore's attitude to transparency issues was similar to that of South Korea. This is illustrated in the manner in which discussions and details of the FTA between the EU and Singapore were kept secret until final negotiations were completed on 16 December 2012.Footnote 183 The draft FTA between Singapore and the EU was not immediately made available, though there was official confirmation that the FTA envisions a ‘high level of intellectual property rights protection’ and provides for ‘strong rules on the enforcement of intellectual property rights’.Footnote 184 ACTA provisions were included in the FTA with the EU; and are similar to the US–Singapore FTA containing significant TRIPS-plus provisions.Footnote 185 Given the lack of debate on ACTA in South Korea and Singapore, it is likely that both countries might have successfully completed the ratification process. However, if South Korea and Singapore had been the only countries to ratify ACTA alongside Japan, this would have generated considerable comment, thus making it necessary to wait until other ACTA negotiators made their positions clear with regard to the ratification process. In other words, the political circumstances dictated the need for other developed States among ACTA signatories to take the step towards ratification.
B. ACTA Negotiators: The Developed States
In March 2013 the US encouraged Canada to meet its ‘ACTA obligations’, despite ACTA not yet being in effect.Footnote 186 Commentators in Canada accused the government of attempting to satisfy US demands when it passed the June 2012 Copyright Modernization Act that ensured that Canada would comply with WIPO Internet Treaties.Footnote 187 Furthermore, Canada introduced several measures that are part of the ACTA provisions in its C-56 Bill (Combating Counterfeit Products Act) in March 2013.Footnote 188 ‘Netizens’ have made their presence visible in their protests against these copyright legislation measures that attempt to usher in ACTA provisions into Canada.Footnote 189 The use of alternative legislative mechanisms to introduce ACTA provisions means that the likelihood of attempting to ratify ACTA in Canada is very slim.
With regard to Australia's position, commentators wrote to the Joint Standing Committee on Treaties during the consultation process to condemn ACTA for failing to provide for appropriate safeguards with regard to human rights, consumer protection, competition and privacy laws.Footnote 190 The Australian Government agreed to delay ratification in order to consider the Joint Standing Committee on Treaties Report on the economic and social benefits and costs of ACTA.Footnote 191 Recommendation 9 of the Report specifically mentioned that ‘a future Joint Standing Committee on Treaties (will) have regard to events related to ACTA in other relevant jurisdictions including the European Union and the United States of America’.Footnote 192 Similarly, New Zealand suspended the ratification process on the basis that any decision by its government would take into account developments in ‘other ACTA signatory countries’.Footnote 193 Thus, Europe's failure to ratify the Agreement is likely to have had an adverse impact on Australia and New Zealand's position with regard to approval of ACTA.
With regard to the US, commentators and legislators raised doubts on the constitutionality of the decision taken by the Bush Administration, and continued by the Obama Administration, to negotiate ACTA as a ‘sole executive agreement’. Sole executive agreements are agreements concluded on the basis of the President's constitutional authority and do not require Congress approval. Since there is no other comparable trade agreement concluded in this manner, it represents a significant expansion of the scope of Executive Agreements illustrating a departure from the way that the United States has pursued IPR goals in other international trade negotiations.Footnote 194 It is important to note that the US had not at any point indicated an intention to submit formal instrument of approval for ACTA and did not eventually submit any documentation that committed itself to the Agreement.Footnote 195 Eventually, only Japan, which had initially proposed the idea for a new treaty, ended up ratifying the Agreement, amidst street protests organized by Anonymous in Japan about the agreement being pushed through Parliament at great speed.Footnote 196
C. ACTA Negotiators: Morocco and Mexico
Two developing States that were involved in the ACTA negotiations were Morocco and Mexico. As a WTO Member State, Morocco is committed to the TRIPS Agreement and, in addition, is a party to a number of international IP treaties and conventions.Footnote 197 Morocco was the only African country that signed ACTA, but the process of ratification in the Moroccan Parliament has stalled.Footnote 198 Given that ACTA faced allegations of having engaged in ‘country club’ behaviour to pursue an ‘enforcement agenda’ that does not take development issues into account, it is interesting to examine the circumstances that led Morocco to be an ACTA signatory.
Morocco's position can be explained by taking into account the FTA that it had signed with the US. The FTA provided for the ‘most advanced IP chapter in any FTA negotiation so far’ going beyond TRIPS requirements, thus making it, from the viewpoint of the US—‘truly a precedential agreement for future FTAs’.Footnote 199 As a result, Moroccan legislation increased the term of IP protection, introduced broad anti-circumvention provisions, strong civil and criminal sanctions for IP infringements and a limited liability regime for communications service providers.Footnote 200 Commentators argue that these changes have ‘not been accompanied by supporting doctrinal, scientific or policy research’ and therefore do not take into account social and economic development policies, despite the fragile state of access to information and the public education system in Morocco.Footnote 201 A study reveals that Moroccan State authorities in charge of public libraries and education are unaware of the breadth and consequences of the international IP provisions inherited by the State and this has resulted in Morocco relinquishing the opportunity to take advantage of the flexibilities within the TRIPS Agreement.Footnote 202 Morocco's position appears to be common among francophone Africa, where some of the poorest countries have adopted very strong IP standards, even though they were never on the US Special 301 list or subject to a WTO dispute.Footnote 203 Indeed, despite adopting strong IP provisions, the Moroccan Copyright Office reported that Morocco's capacity to detect and address digital infringement is insufficient, thus signalling that Morocco's participation in ACTA can be sidelined as the token presence of an African country.Footnote 204
Mexico's participation in ACTA negotiation presents an interesting picture, as Mexico is one of the G5 ‘emerging powers’ along with Brazil, China, India and South Africa, and furthermore is a member of the North American Free Trade Agreement.Footnote 205 This is because while the Mexican Executive favoured ACTA, its Senate had unanimously voted to withdraw from ACTA negotiations in 2010. During the October 2011 ACTA Signing Ceremony, Mexico had not signed the Agreement but limited themselves to expressing support and commitment to ACTA. In July 2012, the Mexican Executive signed ACTA within weeks of the European Parliament rejecting ACTA. While this may come as a surprise, given that other ACTA negotiators had restrained themselves from the ratification process, Mexico's move to sign ACTA came amidst speculation that it was in response to US conditions for Mexico to join the Trans-Pacific Partnership (TPP) negotiations.Footnote 206 This speculation arises from the US ‘invitation’ to Mexico to join the TPP talks—a trade partnership in which Mexico had expressed interest in November 2011.Footnote 207 The USTR reported that it had briefed Mexico about ‘the high standards and objectives that the TPP are seeking in the agreement’ and furthermore ‘negotiate(d) issues that are a priority for the US in the TPP’.Footnote 208 The decision of the Mexican Executive to sign ACTA, however, did not evoke much confidence in relation to the agreement being ratified by the legislature. The Mexican Congress had ruled that the Executive had negotiated and signed the agreement in violation of the Law on the Approval of International Treaties in the Economic Field as ACTA provisions would violate fundamental rights guaranteed by Mexican legislation.Footnote 209 The ACTA was never placed before the Mexican Senate for ratification, suggesting that the discussions had died a political death in Mexico.Footnote 210 The presence of Mexico and Morocco, therefore, does not represent the accommodation of development issues in ACTA negotiations and their participation is illustrative of the expansion of IP measures that has piggybacked on developing countries' enthusiasm to open up their economies to the global market.
VI. DIGITAL ACTIVISM AND ITS ‘NETWORK AGENDA’: SHIFTING THE NATURE OF GLOBAL IP LEGAL ORDER?
The creation of an advisory body in WIPO, to deal with enforcement of IP rights and the ever-increasing participation of State and non-State actors in the Global Congress for Combating Counterfeiting and Piracy, is a clear indicator that there is global consensus on the need to curb IP infringement. However, developed States felt that the campaign against IP infringement was not secure within established IP norm-making bodies due to the promotion of an agenda that aimed to integrate development issues with IP rights. Consequently, strong IP provisions have been pursued through Free Trade Agreements and other bilateral arrangements that manoeuvred developing countries to adopt IP provisions that could potentially undermine their development needs.Footnote 211 Following a proposal from Japan for a new treaty, developed States set about creating a new forum that endorsed an ‘enforcement agenda’ at the expense of the development agenda. Through this process, the ACTA negotiators sought to cocoon themselves from the distractions posed by advocates of the ‘development agenda’. The creation of ACTA is thus the latest in a series of forum shifts that allow developed States to optimize their power and advantages and to minimize opposition.Footnote 212
Despite its plurilateral nature, commentators have argued that the ACTA appears to be ‘geared’ towards non-participants, especially as ACTA negotiators are not among the main sources of trade in counterfeit and pirated products.Footnote 213 The agreement, however, exuded the appearance of being a standard-setting treaty as confirmed by the European Commission's argument that ACTA would set ‘an example to other countries where IP rights are less protected’ and ‘protect European products and ideas from being stolen elsewhere’.Footnote 214 Despite this narrative, the agreement which took place within a circle of States promoting the IP enforcement agenda,Footnote 215 ended in a whimper, with nothing to salvage from the years of negotiations and efforts that were devoted to it. Interestingly, criticism by proponents of the ‘development agenda’ did not play a decisive role in causing the failure of ACTA to emerge as a functional treaty.
This paper demonstrates that the lack of transparency in ACTA negotiations, followed by the dramatic ‘leaks’ of draft texts by Wikileaks, merely resulted in the final text being watered down. Much of the protest against ACTA rested on the failure of ACTA negotiating partners to discuss the provisions of the agreement with all stakeholders, leading to fears which may not necessarily have been founded on reality. Criticism relating to secrecy in ACTA negotiations was not entirely well founded, as secrecy is not new to general international negotiation processes, and initial discussions are usually rooted and developed within the protective veil of limited transparency.Footnote 216 However, ACTA secrecy became suspicious by proxy, as the justification to adopt secrecy (ie, national security) was flimsy, and demonstrated State willingness to privilege the protection of the IP lobby against the interests of other stakeholders.Footnote 217
The Directorate-General for External Policies of the EU found that ACTA ‘does not appear, on its own, to have a significant impact on the EU's innovative capacity or its global competitiveness’.Footnote 218 This is ‘partly due to the relatively modest scale of the [ACTA-lite provisions that were eventually finalized], as well as the fact that ACTA will not require any change in the laws or regulations of significant competitor countries such as Brazil, India and China’.Footnote 219 This report, however, raised concerns that some of ACTA provisions were vague,Footnote 220 though it argued that the lack of clarity does not, ‘in the case of the EU … entail such a significant shift in the EU Acquis’. Similarly, though the USTR consistently maintained that the ACTA is in alignment with existing US legislation, the US Congressional Research Service concluded that ‘[d]epending on how broadly or narrowly several passages from the ACTA draft text are interpreted, it appears that certain provisions of federal intellectual property law could be regarded as inconsistent with ACTA’.Footnote 221 Though vagueness in provisions may be necessary to ensure that all parties ratify the international agreement, vagueness in ACTA provisions could potentially ‘support more extreme interpretations leading to unfair, intolerant or repressive measures’.Footnote 222
Significantly, ACTA failed due to active opposition and protests engineered by legislators, civil society groups, digital activists and ‘netizens’ from within ACTA negotiating States. The advent of digital technology has resulted in widening the chasm between industrial and public interests and developed States have ignored the need to give policy space to differing rationalities whilst engaging in ACTA negotiations. ACTA's demise indicates that the rapid changes in the digital environment have not only expanded the scope of IP rights, but they have simultaneously empowered the internet consumer to take a stand against the powerful IP lobby.Footnote 223 Future efforts to engage in the creation of a new global copyright order will have to be preceded by ironing out the differing rationalities that exist in the promotion of industrial, public and digital interests. For example, the Charter of Fundamental Rights of the European Union classifies the protection of intellectual property as a fundamental right alongside the right to privacy, data protection, freedom of expression, presumption of innocence and effective judicial protection.Footnote 224 Indeed, the ‘network agenda’ sought to promote these fundamental rights within the digital space. However, the vagaries and the complexities of the cyberspace has juxtaposed the fundamental rights of the digital user against the economic rights of the IP right-holder, traditionally protected by developed States, on the basis of the maximalistFootnote 225 principle that more IP could result in more innovation.Footnote 226 This means that the average internet user in developed States who enjoys fundamental rights promoted by the ‘network agenda’ in the form of political values, is suddenly caught in a web that places these rights against the economic interests of IP right-holders.Footnote 227 This exposes an idiosyncratic relationship that the developed countries have between the protection of privacy and freedom of speech and expression of the internet user, which creates multifaceted and competing rationalitiesFootnote 228 compounded by complex interactions among State and non-State participants in world society.Footnote 229
Thus, the collapse of ACTA from ‘within’ signals the changing nature of international IP law-making where the developed economies have promoted the enhancement of IP protection and enforcement, drawn to some extent by a ‘maximalist’ principle that more IP must result in more innovation. ACTA provisions that allowed the use of public resources to protect IP owners' rights implied the incorporation of a maximalist principle that favours a certain view of rights ownership and tilts the balance against public interests.Footnote 230 While the ‘maximalist’ principle has so far successfully seen off the threat from the proponents of the development agenda, the ACTA debacle illustrates how the negotiating partners had underestimated the power of social media to mobilize protesters seeking to promote the ‘network agenda’.Footnote 231
ACTA's demise foretells the paradigm shift to the perpetual cyclic game of the developed and developing States—whereby the growth of IP rights is invariably followed by a ‘subtraction phase’Footnote 232 pushed by developing countries, further followed by a shift in fora to steer further the growth of IP rights.Footnote 233 The spontaneous emergence of the ‘network agenda’ that relies on cyberspace activism and digital technologies has placed an effective barrier to the ‘regime complex’Footnote 234 espoused by regimes alternating between IP ‘maximalism’ and IP ‘developmentalism’. The problem is exacerbated by the increasing number of rationalities that collide within the digital sphere. The future of global IP norm-making will thus experience unpredictability caused by proponents of the ‘network agenda’ subverting the traditional building of the will of the State as long as they are excluded from interstate negotiations.Footnote 235 This trend can be further observed by examining the role of the ‘network agenda’ in potentially influencing the IP chapter of the Trans-Pacific Partnership Agreement that is currently being negotiated as an international trade agreement.Footnote 236
The ACTA debacle has illustrated that legitimacy of IP norms does not necessarily rest on the acceptance by States, or on compromises between developed and developing States. It is necessary to restructure the global IP order on the basis of sectoral interests rather than the territorial interests represented by the ‘enforcement’ and ‘development’ agenda. The success of global IP norm-making in the digital age will depend on the transparent and inclusive gathering of State and non-State actors representing varying rationalities that bring together a conflux of the enforcement, development and network agendas.Footnote 237 After all, law-making derives their ‘just powers’ only from the ‘Consent of the Governed’.Footnote 238
