Michael D. Moberly   July 23, 2012

Admittedly, I took somewhat of a passive approach to the passage of the Anti-Counterfeiting Trade Agreement (ACTA) by the European Union’s Parliament, earlier in July, because I believed it to be a ‘no brainer’.   Was I ever wrong!  In hindsight, I did not give the groundswell opposition the attention or credence it deserved and ultimately misjudged the influence such sustained, diverse, and intensive lobbying efforts would come to have on the EU Parliament.

Today, the ‘nanosecond communication environment’ contributes to fewer and fewer legislative ‘no brainers’ whether it is proposed legislation in the US or EU.  Subsequently, less can, and probably should, be assumed or taken for granted.

Certainly, there’s no argument that global product counterfeiting poses substantial adverse economic impacts to every industry sector, not just the music side.  Aside from the largely subjective, but nevertheless, increasing guesstimates of economic losses attributed to infringement, counterfeiting, and product piracy, it’s quite correct to portray each as now being an entrenched and extraordinarily lucrative  global industry that comprises substantial (and rising) percentages of many countries GDP, sources of employment and personal income, and manufacturing base.

So, every business today, whether it’s based in the EU or the US, is well advised to conclude that IP infringement, counterfeiting, and product piracy have moved well beyond merely being annoying probabilities to increasingly costly inevitabilities if left unchecked by either practice or laws.  (For additional perspective please see July 8^th blog post titled ‘Intangible Assets and Counterfeit High-End Apparel).

But, that doesn’t appear to be the primary rationale behind the opposition that ultimately led to the rejection of ACTA.  Instead, opposition to ACTA, according to Chris Brogan, Managing Director, Security International, who has an extraordinarily experienced track record in such matters, points out that ACTA’s demise was largely due to it being framed as both a privacy and human rights issue.

Brogan says, no one should get the opinion that the European Parliament is not supportive of international efforts to curb piracy.  However, in large part due to the vagueness and breadth of ACTA’s intended coverage, privacy and human rights lobbyists felt that individuals and small businesses, as well as large commercial concerns, would be laid open to draconian legal measures of enforcement.

The privacy – human rights based opposition, Brogan says, evolve around three key issues…

1. respect for privacy, i.e., many individuals share their choice in music, but not for commercial gain.
2. freedom of expression which has to be balanced against any harm to another individual/organization, and interestingly,
3. the right to a fair trial which opponents argued ACTA provided too much legal power to organizations to enforce their proprietary rights.

Brogan adds, as an experienced participant in privacy legal issues for 25+ years, “I understand the difficulty that non-Europeans have with Europe’s strong advocacy for strengthening the privacy laws, and presumably any legislation, which on its face, appears to limit or otherwise modify expectations of privacy”.  Brogan also points out that Europe’s previous experience with Facist and Communist states that purposefully curtailed citizen freedoms through (draconian) legislation and law enforcement remains an impetus to oppose legislation that contains language that could be interpreted as curtailing human rights and personal privacy.

Similarly, an official of a European institution stated that ACTA had been rejected due to the presence of a strong movement of concerned citizens who feared that their civil rights were in jeopardy.  In addition, this source described unprecedented lobbying by thousands of EU citizens in the form of street demonstrations, e-mails and calls to MEP’s and a petition, signed by 2.8 million citizen’s worldwide, urging ACTA’s rejection.  Even some, the source said, characterized ACTA as a new form of dictatorship in which authorities and companies would have too much control over the Internet and the possible restriction of access to generic medicines, if it were to be passed.

The European institution source goes on to suggest there is a growing and influential anti-EU movement in Europe today, one claim of which is that ‘Brussels is ruling everything’.  Both the European institution source and Mr. Brogan agree that ACTA’s language appeared vague, and thus susceptible to being misinterpreted.

Thus, in an environment where such strong sentiments exist regarding privacy and human rights, and having been confronted with a strong and like-minded public lobby, the EU Parliament overwhelmingly voted against ACTA. Proponents of ACTA suggest the MP’s vote was not based on facts, rather one on sentiment.

Still, Mr. Brogan and the European institution source agree a strong need remains to find alternative ways to protect intellectual property. And, in today’s increasingly irreversible knowledge-based global economy in which 65+% of most company’s value, sources of revenue, and ‘building blocks’ for growth and sustainability evolve directly from intangible (IP) assets, finding common ground whereby those assets are respected and accordingly safeguarded is critical!