ACTA has not survived the vote
of the European Parliament

The European Parliament rejected the Anti-Counterfeiting Trade Agreement (ACTA) on the 4th of July 2012.

On 22 May 2012, the European rapporteur for ACTA, David Martin, strongly recommended against the Treaty, saying that the intended benefits of the Treaty were far outweighed by the potential threats to civil liberties and given the vagueness of certain aspects of the text and the uncertainty over its interpretation, the European Parliament cannot guarantee adequate protection for citizens’ rights in the future under ACTA.

ACTA has caused a great deal of controversy during the past years. The Multilateral Treaty aimed to establish an international legal framework to targeting counterfeit goods, generic medicines and copyright infringements on the Internet.  It intended to create a new governing body outside existing forums, such as the WTO, the WIPO and the UN.  The first leaked versions of the ACTA treaty showed the implementation of a couple of severe measures, with little respect to the fundamental rights, such as the monitoring obligation of Internet Service Providers or the “three strikes and you are out” rule. Several concerns remained unanswered, and some of the provisions left too much room for interpretation, and could eventually lead to perverse outcomes.

For example, Article 27 of the Treaty, concerning the enforcement in the digital environment stipulated that enforcement procedures would apply to an infringement of copyright or related rights over digital networks, which may have included the unlawful use of means of widespread distribution for infringing purposes. Nonetheless, the Treaty does not give the Parties a wildcard to employ any kind of enforcement. After all, the same articles stated that these procedures should be implemented in a manner that avoids the creation of barriers to legitimate activities, for example e-commerce. Moreover, it had to be consistent with a Party’s legislation, and it had to preserve the fundamental principles such as freedom of expression, fair process, and privacy. However, there were still some concerns given that the Treaty provided that these procedures could be put into place in the context of the cooperation between the Right Holders and the Internet Service Providers. This could have resulted in the fact that the latter would be able to monitor, or hand out penalties to its users and thus circumvent the judicial system.

Furthermore, article 27 left also the door open to privacy issues because it allowed that an Internet Service Provider could be ordered to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a complaint, and where such information is being sought for the purpose of protecting or enforcing those rights. Given the Treaty did not provide a definition of the competent authority to order an Internet Service Provider to disclose this kind of information, it would be possible for the Right Holder to obtain the personal information of an alleged infringer without a court order.

In addition article 23 of ACTA intended to criminalize commercial-scale intellectual property infringements, without explaining the notion “commercial-scale”. Hence, considering the ambiguity of this term, the provisions could target anyone who uploaded a copyright protected song or picture on his blog or shared protected works through a P2P network.

The main reasons for the rejection lay in the fact that the treaty has been negotiated behind closed doors.  The European Parliament deplored that the parties to the treaty decided not to negotiate through the well-established bodies such as WIPO and WTO, which have established frameworks for public information and public consultation.  The Parliament also pointed out that it has made many efforts to harmonize IPR enforcement measures the past years and the ACTA treaty negotiations totally circumvent the normal EU decision-making process.

The European Commission on the other hand is not giving up and will suggest modifications to the Treaty in order to meet the different concerns.

The vote of the European Parliament does not mean that Europe turns a blind eye on counterfeiting or any other intellectual property infringements. It merely implies that the safeguard of the fundamental rights is as important as the protection of intellectual property rights.

Although ACTA might have caused little change on European regulations, it has been made clear that the democratic process in this kind of legislation needs to be respected.

06 July 2012

Griet Verfaillie - griet-verfaillie@peeters-law.be
Lynn Pype - lynn.pype@peeters-law.be

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