ACTA Rejected: The Fight For Internet Freedom Tastes Success – India to follow?

Protests work. There’ no doubt in my mind any more. The tossing out of SOPA after a huge wave of protests could have been a fluke event. But with the European Parliament rejecting the Anti-Counterfeiting Trade Agreement (ACTA) as well, on the back of both online and offline protests, one begins to realise the influence of people’s participation in the deliberative process and its influence in putting a stop to overbearing intellectual property laws. And with India facing a similar crisis of its own, I think the successes of other jurisdictions give us a lot to learn from.

With the European Parliament rejecting the treaty with a clear majority (478-39), the future of ACTA looks bleak. One might remember my post a couple of years ago when news of the treaty was just emerging, where I expressed concerns about the secrecy with which the treaty was being negotiated and the seemingly sinister motives of the United States to ‘export’ these treaties to other countries (including India) to bring intellectual property enforcement standards on par with their own. 

It was bad enough that the WTO and the WIPO (designated forums for such negotiations) were being bypassed by America. But things got murkier when President Obama argued that it was merely an ‘executive agreement‘ and hence did not require Senate ratification. As such, the ACTA was all set to come into force in the US and slowly make its way across continents, eventually reaching the developing countries (the real focus of the Americans). So quite understandably, all eyes were on Europe to take a stand against the big American corporations that were pushing this treaty forward. And they did. There were a few anxious moments when it looked like Wednesday’s  plenary vote was going to be postponed by almost a year, but again, concerns raised about the need to immediately reject the treaty without waiting for the opinion of the European Court of Justice, eventually triumphed.

So there are two positive outcomes that emerge, excluding the rejection of the treaty itself. The first is the fact that the American special interest groups that have been effectively controlling copyright legislative processes in the recent past, have been conclusively defeated. With Europe taking a stand against Hollywood and so decisively, there is hope for more sensible copyright law reform in the future. Secondly, in one of the interviews I was reading, a Member of European Parliament mentioned how her office had received tons of letters goading them to vote ‘NO’ on Wednesday’s vote and how a bulk of them came from India. There’s something to be said about the increasing awareness of the Indian population about such issues and their active participation in protesting as well.

But before celebrating the rejection, it might be useful to understand why exactly a celebration is necessary in the first place. Ever since SOPA and PIPA, I, like many others, have noticed a lot of gaps in knowledge and  misinformation being freely disseminated in order to create panic and fear. A lot of it is unsubstantiated and some of it is just plain false. 

When I first started writing about ACTA, I was more concerned about the secrecy of the treaty and the geo-political implications since it was potentially going to be ‘shipped’ to India in a pre-negotiated form. But as time went on it became apparent that there were some serious substantive issues in the treaty as well. Thankfully though, a lot of contentious clauses were dropped in the final version of the agreement, thanks in no small part to the consistent efforts of bloggers and scholars such as Michael Geist who scrutinised draft versions of the agreement that were being leaked from time to time. 

However, there are still concerns with the agreement. My primary concerns relate to freedom of speech and copyright law issues. Some writers have written about the danger of the clause pertaining to ‘voluntary cooperation between business parties’, which could give rise to the adoption of a three-strikes regime in countries that adopt the ACTA. While this is not mandated, there is precedent for ISP’s working together with record companies and movie studios to enforce copyright in a variety of ways and we must be wary of the privacy and free speech implications of such co-operative efforts. Thanks to a recent study by the Centre for Internet and Society, we have evidence that ISP’s err on the side of caution when take down notices are issued to them, even if frivolous. While their case study was specifically focussed on free speech (political speech etc.) a similar study on copyright grounds will probably produce similar results. 

So let’s not just sit back and relax. A three strikes law could be inserted into the Intermediary Guidelines at any time and your internet connections could be disconnected based on incorrect take down notices (since there is no judicial determination/review of this action). And for someone who communicates primarily on the internet, that’s a free speech restriction if there ever was one. 

Coming back to the issue of protests, it might be useful to reflect on the recent developments in India for a second. The Anonymous protests against the blocking of file sharing websites and online censorship were not the success they aspired to be. And the efforts of a few parliamentarians to have the Intermediary Guidelines annuled did not bear fruit either. But the mass protests against ACTA on the streets of Poland and its subsequent rejection is just one more reason not to dismiss such efforts straight-out. Like I mentioned earlier, it is clear that Indians are growing increasingly aware of their rights online so the ACTA rejection should only push us to participate in the deliberative process even more. 

A few months ago, the Arab Spring witnessed the beginning of a revolution for democratic rights and calls for fundamental freedoms in the Middle East. Swaraj wrote a post about the Internet Freedom declaration a few day’s ago and I think back to how that very concept meant nothing even a decade ago. And with the rejection of SOPA in the U.S. and now ACTA in Europe, I think the revolution for internet democracy is only just beginning and Indians will have to come together and participate at some point or another.