ACTA Update V

The European Commission's defence of ACTA has essentially two prongs. The first is that "ACTA changes nothing for Europeans"; I discussed why that was simply not true in my previous two updates. The other is: "we need ACTA to protect our economies from counterfeiting." Leaving aside the sleight of hand that blurs the distinction between physical counterfeits and digital copies – something I've noted before – I want to show why this claim too is false.

First of all, let's look at a typical statement of the counterfeiting "problem"; this one is from the UK government's official propaganda, er, statement about ACTA:

Counterfeiting and piracy of intellectual property rights is recognised as a global issue. The Organisation for Economic Cooperation and Development (OECD) estimates that the international trade in goods infringing intellectual property rights accounts for more than $250 billion a year. In Europe alone, we are losing more than ‚¬8 billion annually through counterfeit goods entering the market. This impacts the competitiveness of our businesses depriving workers of jobs and can harm consumers through the distribution of dangerous products.

ACTA is about tackling these large-scale infringement activities, often pursued by criminal organisations and which frequently pose a threat to public health and safety. ACTA aims to establish shared international standards on how countries should act in these cases. Importantly, ACTA will not create new intellectual property rights, laws, or criminal offences in the UK or EU. It simply establishes efficient and broadly common rules for how intellectual property right-holders can enforce their rights in practice.

As you can see, this uses the "dangerous products" argument, which has nothing whatsoever to do with digital copying, and states "we are losing more than ‚¬8 billion annually through counterfeit goods entering the market", and that "ACTA aims to establish shared international standards on how countries should act in these cases."

The UK site points to a European Commission page that has more of the same:

ACTA is an international trade agreement that will help countries work together to tackle more effectively large-scale Intellectual Property Rights violations. Citizens will benefit from ACTA because it will help protect Europe's raw material – innovations and ideas (Full text of ACTA in all EU languages)

Europe's economy can only remain competitive if it can rely on innovation, creativity, quality, and brand exclusivity. These are some of our main comparative advantages on the world market, and they are all protected by Intellectual Property Rights. As Europe is losing billions of Euros annually through counterfeit goods flooding our markets, protecting Intellectual Property Rights means protecting jobs in the EU. It also means consumer safety and secure products.

Again, leaving aside the outright misinformation that this is only about "large-scale" violations when, as I noted in previous updates, there is no minimum level for such violations, which can in principle catch single individuals sharing a single mp3, we find the same basic argument: that by passing ACTA, counterfeiting will be reduced and jobs saved.

The European Commission page on ACTA points us to a report on counterfeiting. Apparently, things are getting worse:

Customs interventions involving goods suspected of infringing IPR have almost doubled in 2010. Almost 80,000 cases were recorded in 2010, compared to 43,500 cases in 2009. This dramatic increase is due to the growing number of interceptions in postal traffic, which has significantly increased as a result of the growing number of online purchases in Europe.

But hang on, that says that this is due to interceptions of postal traffic - not catching wicked counterfeiters sneaking across the borders with van-loads of dodgy goods. That's interesting, because if ACTA will be used to help stamp out such counterfeiting, it will doubtless try to do that in part by tackling the Web sites where people are buying all this stuff – there's no other way. And that means things like blocking Web sites, despite what the European Commission would have us believe. But that's just speculation. Let's just concentrate on the facts, as the EC keeps on exhorting us to do.

So let's look more closely at where all these counterfeits are coming from exactly. According to the European Commission's own figures, the top places where counterfeit goods originate are as follows:

China 84.92%
India 3.48%
Hong Kong 2.95%
Moldova 2.06%
Turkey 1.44%
Greece 0.91%

Now, the claim is that ACTA will protect European innovation and safeguard jobs by tackling the counterfeit goods entering the market, worth around ‚¬8 billion annually. But there's a slight problem here: ACTA only affects the countries that have signed it. That is, it has no legal force for countries that are not signatories. Looking at the list above, the only country that is part of ACTA is Greece; this means that at most, only 0.91% of counterfeits might be tackled by ACTA's rules. The other 99% of counterfeits entering the EU – around ‚¬7.92 billion each year – will not be affected, because they originate in countries that aren't a party to ACTA.

But don't just take my word for this assertion that ACTA will actually have only a minimal effect on tackling counterfeits in Europe. The other day, I wrote about how the European Parliament's own rapporteur on ACTA, Kader Arif, had resigned in disgust at the way the ACTA negotiations had been conducted. The Wall Street Journal has some very interesting comments from him on why he thinks ACTA is a disaster for Europe, and these include the following key point:

The argument of the Commission is that ACTA does not change anything for European citizens, but that it represents a huge progress for our companies operating abroad. This is not serious. Maybe, if China or India had been part of the agreement, we could have considered that ACTA was a way of exporting to these countries our legislation which is very protective of intellectual property rights. This could have been a real progress. But this is not the case, almost all ACTA parties are developed economies with well functioning judicial systems. The conclusion is simple: either ACTA is useless, or it is a threat.

This is the Great ACTA Lie: that we must implement it to protect our innovation from being ripped off by a huge flood of counterfeits entering the EU. But as Kader Arif underlines, this simply doesn't make sense: the countries that are signatories to ACTA aren't sending counterfeits to Europe (except possibly Greece, and that's in Europe, and already covered by strict EU laws), while the countries that do export large quantities of counterfeits to Europe aren't in ACTA, and therefore will ignore it.

That is, the core justification for ACTA does not hold up, and the European Commission's attempt to push through a treaty that will be so damaging to the Internet and basic human rights on the grounds of fighting counterfeiting is cynical and dishonest in the extreme.

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