21 January 2015


'Lobbying and Lawmaking in the European Union: The Development of Copyright Law and the Rejection of the Anti-Counterfeiting Trade Agreement' by Benjamin Farrand in (2015) Oxford Journal of Legal Studies seeks
to examine the issue of ‘lobbying’ in the EU legislative process, using an interdisciplinary analysis of the development of copyright laws as a way of explaining why and how some lobbyists are more successful than others in having their preferences taken into account in legislation. As this article will demonstrate, the keys to successful lobbying in this field are information exchange, the ability to frame issues at an early stage in the legislative process (agenda setting) and the political salience of an issue. By assessing not only where legislative initiatives in copyright reform have been successful, such as the passing of the Information Society, Enforcement and Term Extension Directives, but also where legislative initiatives fail, as in the case of ACTA, it will be demonstrated that legislative success is not a simple case of ‘big business getting what it wants’, but of varying levels of political salience. Where the salience of an issue is low and voters consider that issue comparatively unimportant to other issues, industry representatives are able to effectively frame legislative outcomes. Where salience is high, and an issue important to voters, this ability is substantially reduced. By approaching copyright law development in this way, it is possible to reconceptualise the role of lobbying in the EU legislative process.
Farrand comments
As the last section demonstrated, copyright lawmaking in the EU is characterised by low political salience and influential industry representative organisations able both to set the legislative agenda and provide information pertinent to that agenda. To use Culpepper’s term, it is an area of policy defined by quiet politics, in which policymakers defer to industry expertise even where other expertise is provided. This does not suggest, however, that ‘big business always gets what big business wants’. As discussed, political salience is changeable, based on changing circumstances or even changing media coverage of an issue. To provide an example both of this changing salience, and of the ability to set the legislative agenda which did not result in successfully passed legislation, it is possible to use the example of the recent vote of the European Parliament on ACTA.
ACTA began as a series of informal talks between the USA and Japan in 2006 on the topic of counterfeiting and piracy in the context of international trade, with the discussion of a potential bilateral or even plurilateral treaty. By June 2008, these informal talks became a formalised negotiation between the USA, Japan, the EU, Canada, Australia, Mexico, Morocco, New Zealand, the Republic of Korea, Singapore and Switzerland. However, these negotiations were secretive, with each party held to a strict confidentiality requirement, to the extent that legislative bodies in each state were uninformed about the details of the negotiations. However, certain industry representative organisations had privileged access to the negotiation documents in the capacity of ‘cleared advisors’. These cleared advisors included representatives of the Intellectual Property Alliance (IIPA), IBM and Time Warner. According to Blakeney, these cleared advisors, such as IIPA, were active participants in the ACTA negotiations, suggesting considerable agenda-setting power on the part of these industry representatives. The public only became aware of the existence of the negotiations with a leak of a statement of initial positions released by WikiLeaks in May 2008. Substantive content came in the form of leaks by online activist organisations such as La Quadrature du Net (LQDN) of draft deliberations in 2009 and 2010, and the release of an interim draft by the EU in April 2010. Information contained in these deliberative drafts revealed that the intention of the Agreement was not only to bring in enforcement provisions to deal with counterfeit goods in transit between states, but also to apply to infringements of copyright committed online. According to Article 2.14 of this Draft, parties could impose criminal sanctions ‘at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale’, which was intended to include wilful copyright and related rights infringements ‘that have no direct or indirect motivation of financial gain’. This appeared to extend substantially the scope of criminal liability for copyright infringement, making it a de facto criminal offence. ACTA began to be frequently criticised in academic literature, particularly over the secrecy of negotiations, and the deliberate attempt to sidestep both the World Intellectual Property Organization and World Trade Organization in order to prevent substantive input from countries such as China and India. The text of the Agreement was substantially modified following the publication of earlier drafts, with Article 23(1) stating that criminal sanctions should be applied in cases of copyright or related-rights ‘piracy’ on a commercial scale, intended to include ‘at least those carried out as commercial activities for direct or indirect economic or commercial advantage’. It was determined that these sanctions should apply in cases of infringement of copyright online under Article 27(1). Nevertheless, this Draft continued to be criticised, with concerns over the scope of possible criminal sanctions and enforcement136 as well as the possible impact on user privacy.
The EU and 22 of its Member States signed ACTA in Japan at a formal ceremony in January 2012. It was assumed at this point that the EU ratification of the Agreement was certain. ACTA had the full support of the business community, and the Commission, which regarded the rapid conclusion and implementation of the Agreement as being ‘an important step in improving the international fight against IPR infringements’. Furthermore, the European Parliament had released a resolution in 2010 reiterating the need to ensure effective protection of intellectual property rights and considered ACTA a step in the ‘right direction’. This would appear to indicate that the legislative agenda had been set, and that activist organisations would be unlikely to prevent the ratification of the Agreement. However, by April 2012 ACTA was described as being ‘on its knees’. What had changed? A key development in the EU rejection of ACTA appeared to have originated in the USA. In October 2011, Representative Lamar Smith introduced a Bill in the House of Representatives called the Stop Online Piracy Act (or SOPA). This Bill contained a provision that would require ISPs to block access to websites used to infringe copyright or trademark through the use of a measure that would prevent a domain name being resolved to an IP address. Critics viewed this as draconian, arguing that it had the potential to be used for censorship. Major internet service providers in particular were concerned about their potential liability under the Bill. So concerned were certain providers that 18 January 2012 was a day of concerted and coordinated action by thousands of websites, including Wikipedia and Reddit, which became inaccessible, presenting a black background and text describing the potential effect of the Bill and providing information for contacting Representatives. Google also ‘censored’ its logo in protest. Due to the high profile of this action, on 20 January 2012, Representative Smith announced that the Bill would be postponed ‘until there is wider agreement on the solution’. The relation to ACTA reflects the nature of the internet as a global communications system—websites did not become inaccessible in the USA alone, but were also inaccessible in the EU. Given the high profile of the USA-based action, European citizens became aware of ACTA. When Donald Tusk, Prime Minister of Poland, announced his intention to ratify ACTA, declaring it a ‘success of the Polish EU Presidency’, an online campaign was initiated in Poland, including the creation of a Facebook page ‘Nie dla ACTA’, which received 100,000 views in less than 48 hours. Online activists coordinated offline action, culminating in ‘15,000 demonstrators in Krakow and 5,000 in Wroclaw’, and an increase in media attention in the rest of Europe. It has been argued that this political mobilisation began in Poland due to a combination of socioeconomic and historical factors, including the fact that copyright was used as a tool of political censorship by the government of Poland during the latter years of Communist rule. This concern translated into concerns over copyright overreach, negative implications for freedom of speech and concerns over process, as evidenced by a statement made by one of the organisers of the ACTA protests that ‘[t]hey promised debates—nothing. They promised openness—nothing. Democracy is being destroyed, the deputies don’t know what they are signing, and all this will lead to a situation when bloggers, scientists and entrepreneurs will be qualified as criminals’. As a result of domestic pressure, Tusk announced in early February that ACTA would not be ratified by Poland as it did not reflect ‘the realities of the twenty-first century’. Germany, Latvia and the Czech Republic announced they would delay, if not block, the ratification of ACTA and the Slovenian ambassador to Japan publicly apologised for signing, referring to it as an act of ‘civic carelessness… [there was] too little transparency’. Street protests continued throughout the EU, with a ‘day of action’ on 11 February, with reports of more than 25,000 protestors in Germany, 4,000 in Bulgaria and thousands more throughout France, the UK, Romania and other Member States, coordinated by activist organisations such as LQDN, FightForTheFuture.org and the Open Rights Group.
The success of civil society in raising awareness about an issue of concern is largely determined by the ability to disseminate information. According to Bennett and Toft, digital communications technologies such as social media platforms can help to coordinate (and blur the distinctions between) online and offline action, particularly when facilitating cross-border actions. The use of Facebook as a communications mechanism, and the spread of information through blogging activities and tweets, facilitated by organisers such as LQDN, can result in the swift mobilisation of political activists who can ‘spread the message’ and organise political activities. Actors such as LQDN then become key nodes in a network of activists, providing both communications infrastructure and information to other activists. What these activists ‘lack in terms of traditional organisational resources they often gain in networking capacities through the use of social technologies to facilitate the maintenance and activation of [ties between civil society activists]’. In this context, protest constitutes a form of ‘outsider’ strategy, a method by which concerns over a legislative policy can be voiced or questions raised as to the legitimacy of a policy through disruptive action. These strategies do not in themselves change legislation, but raise media (and therefore citizen) attention, increasing the salience of an issue. The more media attention an issue receives, the more likely it is that a population will see that issue as important. In this case, protests in Poland helped draw attention to the Agreement as well as frame ACTA as a threat to freedom and democracy due to the secrecy of its negotiation and overreaching internet copyright enforcement provisions. The outsider strategy of protest allowed for protestors to frame the media message as one of threat to citizen freedoms, and substantial media coverage discussing ACTA in the terms used by protestors further assisted in bringing the issue to the attention of the general public, and subsequently to the reporting of the protests in other EU Member States, helping to form the informational basis for civil society organisation. In the period from the initial announcement of the existence of ACTA up until December 2011, there were in total 25 stories about ACTA on BBC News and in the Guardian and Telegraph newspapers. In comparison, between January 2012 and the rejection of ACTA in July, there were 39 stories, almost double the number in six months than there were in the previous three years, and the majority of them negative. This raised the profile of ACTA as a political issue and the high-visibility public actions in the Member States was used as a way of generating additional forms of political action. LQDN created the ‘piphone’, which could make Voice Over IP (or VOIP) calls to MEPs, as well as providing a searchable database that users could use to identify their MEP in order to raise their concerns about ACTA. This proved to be a successful strategy, as LQDN coordinated EU citizens’ contacting of MEPs both during the committee stages of the European parliamentary process and again prior to the final vote. According to a press release by the European Parliament, there was ‘unprecedented direct lobbying by thousands of EU citizens who called on it to reject ACTA, in street demonstrations, e-mails to MEPs and calls to their offices’. As a result of these pressures, the Committees on Civil Liberties, Justice and Home Affairs, Industry, Research and Energy, Legal Affairs, Development and International Trade all recommended that the European Parliament reject ACTA. This recommendation was followed on 4 July, when ACTA was rejected by 478 votes to 39.
The rejection of ACTA can be explained in terms of political salience. As was seen with the examples of the three Directives, copyright law is generally an issue of low salience that does not register with the average European voter. For this reason, industry representatives are able significantly to influence the passage of legislation. In comparison, ACTA became a politically salient issue, generating protests in Europe that were then covered by the media, leading to more widespread protests and inducing citizens to contact the European Parliament, a body that has a historically weak connection to voters. In particular, media coverage referred to the concern of protesters that the Agreement represented a threat to democracy and freedom of speech. This discourse in turn was reflected by MEPs. In April, rapporteur and MEP David Martin stated that the ‘intended benefits of this international agreement are far outweighed by the potential threats to civil liberties… the European Parliament cannot guarantee adequate protection for citizens' rights in the future under ACTA’. The European Parliament, constituting a body of elected representatives, is susceptible to pressure by voters. Where interest in a particular issue is low, it is likely to vote according to the information provided by expert bodies or lobbying organisations. Where the salience is high, however, and citizens demonstrate their interest in, and preferences concerning, a particular policy then they are more likely to listen to the public on that issue. This would appear to indicate that where an issue becomes ‘high profile’, the usual tactics of quiet politics are ineffective. As the media coverage was unfavourable, and represented the views of protestors rather than industry, the ability to mould public perception of the issue was also lost. ACTA had become a high salience issue. Nonetheless, it is important to state that, although ACTA was of high salience, it does not mean that copyright more generally has become a high salience issue. Speaking after the rejection of ACTA, David Martin stated that ‘this was not an anti-intellectual property vote. This group believes Europe does have to protect its intellectual property but ACTA was too vague a document’. European Parliament President Schulz also indicated that the key issue in the rejection of ACTA was the question of transparency and democratic participation rather than intellectual property law, stating:
The decision to reject ACTA was not taken lightly. It followed an intensive, inclusive and transparent debate with civil society, business organisations, national parliaments and many other stakeholders … All over Europe, people were engaged in protests and debates. The mobilisation of public opinion was unprecedented. As the President of the European Parliament, I am committed to dialogue with citizens and to make Europe more democratic and understandable.
This would appear to indicate that while ACTA was a high salience issue, the decision to reject the Agreement cannot be considered as representing a shift in intellectual property policy at the EU level. The success of the ACTA protests and resultant media coverage was in providing a simple and effective framework for considering the impact of the Agreement, namely that of freedom and democracy. However, in doing so the subject of dispute became ACTA specifically and the threat posed by this one document rather than any perceived threats resulting from overly broad copyright protection. Activists therefore petitioned for the rejection of ACTA by the European Parliament and the European Parliament responded by rejecting ACTA. It did not act as a catalyst for rethinking copyright, its aims or the appropriateness of its enforcement mechanisms. It is submitted that copyright lawmaking will continue to be an issue dominated by quiet politics and, as a result, industry organisations will continue to be successful in having their preferred outcomes taken into account. Passing a resolution on the negotiations between the USA and EU on the Transatlantic Trade and Investment Partnership, the European Parliament stated that ‘intellectual property is one of the driving forces of innovation and creation and a pillar of the knowledge-based economy, and that the agreement should include strong protection of precisely and clearly defined areas of intellectual property rights’. It would appear, then, that despite the very visible conflict and, indeed, change in legislative policy over ACTA, the legislative approach to copyright law issues in the EU ultimately remains unchanged.
'Who's Afraid of Wikileaks? Missed Opportunities in Political Science Research' by Gabriel J. Michael in Review of Policy Research (Forthcoming) argues
 Leaked information, such as WikiLeaks' Cablegate, constitutes a unique and valuable data source for researchers interested in a wide variety of policy-oriented topics. Yet political scientists have avoided using leaked information in their research. This article argues that we can and should use leaked information as a data source in scholarly research. First, I consider the methodological, ethical, and legal challenges related to the use of leaked information in research, concluding that none of these present serious obstacles. Second, I show how political scientists can use leaked information to generate novel and unique insights about political phenomena using a variety of quantitative and qualitative methods. Specifically, I demonstrate how leaked documents reveal important details about the Trans-Pacific Partnership negotiations, and how leaked diplomatic cables highlight a significant disparity between the U.S. government's public attitude towards traditional knowledge and its private behavior.