Last week the European Parliament rejected the Anti-Counterfeiting Trade Agreement (ACTA, see also “ACTA as a Case of Strategic Ambiguity“) with 478 voting against the treaty, 39 in favour and 165 MEPs abstaining. Commenting on this outcome, Joe McNamee from the ACTA-critical NGO European Digital Rights (EDRi) stated that “ACTA is not the end. ACTA is the beginning.” In his optimistic account, the rejection of ACTA has substantially changed the debate on intellectual property rights regulation in Europe:

Thanks to SOPA, European citizens better understood the dangers of ACTA. Thanks to the anti-ACTA campaign, it would be politically crazy for the Commission to launch the criminal sanctions Directive. Thanks to ACTA, there is broad understanding in the European Parliament of just how bad IPRED really is and any review now, if the Commission has the courage to re-open it, is more likely to improve the Directive rather than increase its repressive measures.

However, a recent op-ed by Canadian copyright scholar Michael Geist, illustrates why ACTA’s contents might not be so dead after all. Referring to leaked documents of negations between Canada and the EU Commission on the “Comprehensive Economic and Trade Agreement” (CETA):

According to the leaked document, dated February 2012, Canada and the EU have already agreed to incorporate many of the ACTA enforcement provisions into CETA, including the rules on general obligations on enforcement, preserving evidence, damages, injunctions, and border measure rules. One of these provisions even specifically references ACTA.

According to Geist, “the EU has also proposed incorporating ACTA’s criminal enforcement and co-operation chapters into CETA” and “Canada has similarly pushed for the inclusion of ACTA provisions, proposing identical digital lock rules as well as ACTA-style Internet service provider provisions that raised privacy concerns from the European Data Protection Supervisor.”

I suppose that ACTA is far from being an atypical case here. The main rationale for forum shopping (see, for example, Busch 2007) is often to revive provisions failed elsewhere. I think it would be an interesting research project to track “zombie provisions” of failed treaties in subsequently adopted treaties or even in functionally equivalent types of private regulation via standards.

Acknowledgment: the title of this post relates to the title of a German language book on the “Google-Copy-Past-Syndrom” by Stefan Weber.