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Could the EU Walk Away from ACTA, Redux

By Michael Geist

Two months ago, I posted the question on whether the EU might ultimately decide to walk away from ACTA given the ongoing battle over the scope of the treaty (the EU wants it cover all IP, particularly geographical indications, the U.S. wants it limited to copyright and trademarks).  Although the parties continue to indicate they expect to conclude ACTA later this month at the next round of negotiations in Japan, it is still fair to ask whether the treaty will include the EU.  As I've noted in posts this week (here and here), the U.S. continues to cave on many issues, leading to a text some are describing as "ACTA-lite" and which EU Commissioner Karel de Gucht today told the European Parliament was a least common denominator approach.

Notwithstanding the obvious efforts by the U.S. to strike a deal - both by caving on some key issues and pushing for a conclusion to the talks - bringing the European Union on side will not be easy.  First, the approval of Written Declaration 12 by the European Parliament, along with today's contentious hearings, demonstrates that ACTA will face a real fight by the elected parliament once it concludes and receiving the necessary approvals are by no means certain.  Second, the EU continues to link scope of the treaty with its usefulness.  One observer of today's hearing reports that de Gucht threatened to leave the negotiations if the scope and measures are not broad enough to meet European interests.  This means including geographical indications in the treaty.  From the U.S. perspective, however, this may be a line-in-the-sand issue since their inclusion would require domestic law reform, which the USTR has repeatedly promised would not be needed (and which sends the treaty to Congress in an election year).

Today's tough talk from the EU may just be posturing in advance of the upcoming negotiations. It is certainly possible - indeed still likely - that a political compromise will be reached.  If not, the U.S. appears to have decided that Japan will be the last round of talks.  If that is true (and not more posturing), an ACTA without the EU remains a possibility.

Full post as published by Michael Geist on September 08, 2010 (boomark / email).