ACTA has been rejected by the European Parliament, which voted on Wednesday to put the final nail in the copyright enforcement treaty's coffin — at least as far as Europe is concerned.
The Parliament voted by 478 to 39 to reject the Anti-Counterfeiting Trade Agreement, a move that means it cannot come into force anywhere within the EU. In doing so, it followed the advice given to it by five parliamentary committees and heeded the massive public protests that were sparked by the treaty earlier this year.
ACTA could still become reality elsewhere in the world, but only if six of the eight non-EU countries that have signed it go on to ratify it — an unlikely outcome given the EU's rejection of the agreement. These countries include Australia, Canada, Japan, South Korea, Morocco, New Zealand, Singapore and the US, none of which has ratified ACTA yet.
The EU and most of its member states did sign ACTA in January. However, with such agreements, signatures have to be followed by parliamentary ratification if they are to mean anything. In the EU, both the European Parliament and every single member state had to ratify for it to come into force. Not a single member state has ratified ACTA, and the Parliament has now joined Poland and other states in flatly rejecting such ratification.
Whether or not ACTA survives at all now likely depends on whether or not the US ratifies it — there is some debate as to whether Congress or President Obama gets to do this. Obama has previously endorsed the treaty, but now finds himself in an election year where the memory of the SOPA/PIPA defeat is still fresh in many activists' minds.
The rise and fall of ACTA
ACTA was conceived around five years ago, with the US and Japan proposing an international agreement to clamp down on counterfeiting and copyright infringement. China and India, two of the most notable hotbeds of counterfeiting, were both absent from negotiations, but the idea was to convince them to join in future by showing unity among other countries.
At the time, the trade commissioner responsible for the EU's part in negotiations was Peter Mandelson, who later went on to introduce and fast-track the Digital Economy Act, another copyright crackdown law, in the UK.
Because ACTA was framed as a trade agreement rather than the treaty it effectively was, the negotiations around its contents could be held in secret, without the participation of any civil rights groups. It was only through leaked drafts — including some published by WikiLeaks — that those on the outside got to learn what measures the document contained for clamping down on online piracy.
Following continuous leaks, pressure on the negotiators (particularly those from the EU) led to certain measures being dropped from ACTA. These measures would have criminalised people for filming movies in cinemas with mobile phone cameras, allowed border guards to search iPods for pirated music, and forced ISPs to disconnect their customers for file-sharing.
However, several contentious measures remained in the finalised text.
ACTA demanded the criminalisation of 'commercial-scale' copyright infringement, but its definition of commercial scale was broad enough to turn bloggers putting copyrighted images on their blogs into criminals.
The treaty also criminalised the circumvention of digital rights management (DRM) and introduced a US-style approach to the calculation of damages. This latter measure would have allowed the equation of unlawful downloads with lost sales — a questionable method, as many people download something only to go on and buy it.
Can ACTA rise from the dead?
Officials in the US and the EU, including De Gucht, consistently maintained that ACTA would not change the existing laws in those territories, saying the treaty was aimed at bringing other countries up to US/EU levels of copyright enforcement.
As the opposition to ACTA grew in intensity, the European Commission referred the treaty to the European Court of Justice (ECJ) in February, so that the court could decide whether ACTA really was compatible with existing EU common law. However, opponents of the treaty said the move was intended to head off the likely rejection by the European Parliament.
The Commission pleaded with the Parliament to delay its vote, but was rebuffed. Last month, De Gucht drew furious responses from parliamentarians by pledging — whether or not the Parliament rejected ACTA — to reintroduce the treaty for approval in a year or two's time, once the ECJ verdict has come through.
It is not clear at this point whether such a move is even legally possible, but the idea has led some MEPs to accuse De Gucht and the Commission of trying to bypass the democratic process.