2012 brought ACTA into every one’s vocabulary. Not just in the IP-community. And the debate surrounding ACTA has been heated – at least in Denmark– where people of all ages and backgrounds debated ACTA on all social media platforms, often on a frail foundation of knowledge. But slowly the debate quieted down. So what happened to ACTA?

ACTA is the “Anti-Counterfeiting Trade Agreement”. The agreement never came into force, but the agreement was entered into between a number of countries, including the EU with a binding effect for all EU countries. When 6 countries had ratified the agreement, it would enter into force.

The purpose of ACTA  – put in a very simple way – was to secure, that the countries encompassed by the agreement, would have sufficient protection of their intellectual property rights, just as the Berner-convention, the EU Directives etc. secure these rights.

The criticism (in Denmark) has mainly been founded on, that ACTA threatens the right of free speech and information on the Internet, since the agreement contains regulation regarding the internet providers’ obligation to report, customers who violated ip-rights at certain points in time. Especially article 27, regarding the ACTA-countries’ duty to have an efficient civil and criminal enforcement of ip-rights, including enforcement against violation of digital networks, has been debated.

Furthermore, the process by which the ACTA agreement was created has been criticized for being secretive, as well as the attempt to regulate both tangible and intangible ip-rights, both counterfeit products and internet-copyright, have been criticized.

Most of the legal community in Denmark, both practicing lawyers and professors at universities have stated, that ACTA does not change or introduce new regulation to Danish law. However, some have criticized ACTA for tightening the IP-protection without a balanced view to the digital and society development in general.

On 4 July 2012 ACTA was rejected in its current state by the European Parliament with 478 votes against (and 39 for). 165 members did not vote. After this the parliament’s ACTA-reporter David Martin, said that it was possible, that a new form of the agreement or some of the elements of the agreement could be agreed upon in a new form, possible by dividing the agreement into two agreements, one regarding counterfeit products and one regarding internet ip-rights.

However, on 11 July 2012 the EU Commissioner, Nellie Kroes, blogged (on her website) that IP-violation should not be dealt with through tighter and more rigid regulations but instead…

“I’m convinced we need to reform copyright for the digital age. For me, merely making enforcement more and more heavy-handed is not the solution – especially if it results in draconian measures like cutting off internet access.
But a good start – and I hope a principle on which everybody could agree – is that we should make it easier to legally access the content you love.”
Currently that’s harder than it should be. Those restrictions to buying cross-border are not just a barrier to our single market: they’re also frustrating for citizens, they prevent artists getting proper reward and recognition, and they make it harder for new ideas like Spotify to spread across the EU.
Quite a lot of people within the content industry are also waking up to this need to change. And today the European Commission proposed a reform of licensing rules to help get over it.

For many, this is seen as a victory – since the focus shifts from enforcement to modernization. Also in Denmark the Danish Minister of Culture has proposed a plan to strengthen the sharing of legal ip-content on the Internet.

So maybe a wind of change is blowing, and the focus is shifting from enforcement to reform in intellectual property right regulation both in Denmark as well as in EU.

Pernille Ørskov