The ACTA stakeholder meeting last week revealed that ACTA is going nowhere. The best indication for that was the lack of interest expressed by rightsholder groups. No one is interested in the technical mess and the broadened agenda. The poisoned apple was the unpassionate call of a few rightsholders who said they fully support the Commission and negotiator Luc Devigne said “thank you”. That is awful as it may get.
The EU negotiator is forced to deny and bend the truth on multiple fronts. That is a weakness, any supporter can withdraw and say they were deceived (like US-democrats “found out later” they were “deceived” by the Iraqi WMD tales). The Commission was very open about her agenda, now it is forced to hide and deny. Devigne irritates supporters who notice that the Commission lacks the power and guards a technically broken process with contradictory public statements to public and parliament alike.
At a meeting in Brussels on 22 March 2010, the European Commission presented a counterfeit version of ACTA to participants. As with any good counterfeit, it bore quite a strong relationship with the genuine article. However, the differences were quite obvious for those in the know.
Mike Masnik puts it in excellent terms:
The talking points from ACTA negotiators seem clear. When accused of being secretive, deny it and insist that you’re being open. If really pushed on the matter, blame mysterious, nameless “others” for keeping the documents secret. Then, when specific items in the text are brought up, insist that these are being misrepresented, and if only you could see the real text (which you can’t, because it’s a secret) you’d know that it was all blown out of proportion. Then, finally, insist that ACTA won’t change any laws. Of course, if that were the case, there would be no need for ACTA at all.
Now, despite Masnik’s view the overall setup was not so inconsistent when you consider the 2008 story from the Commission on ACTA, it was consistent and easy:
- ACTA won’t change domestic laws. We are a coalition of the willing ready to confirm the status quo beyond TRIPS. We have to shop forums because WIPO and WTO are blocked.
- ACTA would be used as a trade chip in negotiations with ‘problem states’, and once adopted, traded on them with appropriate trade incentives.
Of course the second was against the UN Charta principles to which the Commission is bound by the EU treaties, a bit like “We have to invade Tschingingistan to save the oil”. But the 2008 narrative is not true anymore.
First of all the Commission negotiators went beyond confirmation of the status quo. All players expected so but following their maximalist negotiations approach they didn’t cheat a bit (cmp. EU-Korea FTA) but went too far. ACTA includes a wide range of new and controversial matters, many of them introduced by the Commission negotiators. Thus ACTA is drawn into a political conflict over parliament scrutiny powers and legislative competences (same on the other side of the Atlantic, cmp. the constitutional criticism on the presidential adoption plan by Lessig). The Commission does not do that in the open. They say they won’t go beyond the acquis but the inclusion of criminal matters which are not in the acquis raises eyebrows. These criminal matters are negotiated by the presidency, under an uncertain procedure. What does “not beyond the acquis” mean?
Secondly, Devigne denied the second item in the answer to Hammerstein, who asked about the Commission’s name and shame list. It seems riddiculous to deny such an approach and plan given the “Global Europe” strategy contents, also given earlier statements from the directorate. They would no do that, indicated Devigne. How pathetic!
Oh, and let’s not mention the desasterous performance of Devigne regarding admitting that they won’t respect the parliament’s resolution on limit to counterfeiting. There he stressed being in line with the acquis again.
What does “not beyond the acquis” mean? It probably does not mean what we ought to think and that provides room for great controversy in Parliament, will attract all parties to dig into the technical vulnerabilities of the process under the Treaties. What DG Trade apparently fails to realise is that they lack competence to go beyond the acquis. When Parliament calls you to respect the acquis, that is like when I am warned to obey the law. So you don’t get any flowers for that. When parliament asks to limit an anti-counterfeit treaty to counterfeit, just do that.
How many hearings of that kind could the Commission still afford, until a superiour would have to pull the plug? Observers noticed how Luc Devigne became the minedog while his colleagues hide away.
On Tuesday a consolidated version of the January state of discussions was leaked on the internet. The text shows that ACTA is nowhere near consensus. Trade negotiators are no specialists for international legal harmonisation. Legal harmonisation takes decades, slow and thoughtful debate. Now a community of international legal specialists would jump in and inspect the leaked mess. More tricky questions to the negotiating parties ahead. More interest groups interested to put their stakes out the fire. How long would it take unless everyone notices that ACTA has nothing to do with a trade agreement (TRIPs was based on a fiction of barriers to trade) but is legislative? Mind the total costs of ownership (TCO) of untruths. Mind the incapability of the Commission to establish trust in parliament. Mind the technical difficulties of the process and on how many sides it can be challenged. Mind the still unresolved secrecy which attracts attention.
It is ACTA’s beginning of the end.
Open technical questions?