Even in the face of a resounding rejection of ACTA by the European Parliament last week, the European Commission seems determined to keep pushing for its eventual adoption. Techdirt noted some ways in which it might try to do that, but an important article by Michael Geist lays out what seems to be an alternative approach that is already close to fruition:
According to recently leaked documents [pdf], the EU plans to use the Canada-EU Trade Agreement (CETA), which is nearing its final stages of negotiation, as a backdoor mechanism to implement the ACTA provisions.
Here's how that would work:
The European Commission strategy appears to be to use CETA as the new ACTA, burying its provisions in a broader Canadian trade agreement with the hope that the European Parliament accepts the same provisions it just rejected with the ACTA framework. If successful, it would likely then argue that ACTA poses no new concerns since the same rules were approved within the Canadian trade deal.
What's extraordinary is how slavishly the CETA IP chapter follows ACTA -- Geist's post provides a table comparing the two in detail, and for many key issues, CETA adopts ACTA's wording exactly.
This includes requiring the promotion of "cooperative efforts" that could see ISPs taking down content on a "voluntary" basis; the use of the meaningless term "fair process"; disclosure of a subscriber's information "expeditiously" upon accusation of infringement; civil damages that consider "any legitimate measure of value that may be submitted by the right holder, including lost profits"; the use of the vague term "commercial scale" for both civil and criminal enforcement measures; and criminal liability for "aiding and abetting" infringement.
What that means is that practically all of the key stumbling blocks that persuaded the European Parliament to vote against ACTA are also present in CETA.
As Geist observes:
The backdoor ACTA approach creates enormous risks for Canada's trade ambitions. Given the huge anti-ACTA movement, the Canada-EU trade deal could face widespread European opposition with CETA becoming swept up in similar protests.
After all, if those proposals were problematic in ACTA, they are equally problematic for CETA, and so it seems likely that the European Parliament will vote against the entire Canada-EU trade deal just as it threw out ACTA. The obvious solution is to remove the intellectual property chapter from CETA altogether to avoid this risk. Geist points out there's an important precedent for this: the U.S. and EU recently announced their own plans to negotiate a trade deal but agreed to keep intellectual property issues out of the talks. If CETA becomes known as ACTA II, the future of the Canada-EU trade deal may hinge on adopting a similar approach.
That would not only be a good idea for CETA, it would be sensible for all trade agreements, since it would return them to their original aim of promoting trade between nations, not regulating the domestic laws governing things like copyright.
