Rapporteur Urges EU Parliament to Reject Anti-Counterfeiting Pact

2 May 2012

The controversial Anti-Counterfeiting Trade Agreement (ACTA) hit a new roadblock last week, as ACTA rapporteur David Martin formally asked the EU Parliament to reject the accord due to its possible impacts on civil liberties, suggesting instead that the Commission look for alternative solutions for Europe to protect its intellectual property.

"The European Parliament cannot guarantee adequate protection for citizens' rights in the future under ACTA," Martin warned in his recommendation.

ACTA is a plurilateral trade pact seeking to strengthen global standards for the enforcement of intellectual property rights in order to combat counterfeiting and piracy.

For the EU, the pact will become legally binding when signed and ratified both by the EU as a bloc and by its 27 member states individually. The EU Parliament's express consent is needed before the agreement is adopted.

Growing concerns about ACTA - including protests throughout the continent - led the European Commission to refer the pact to the European Court of Justice earlier this year, whose legal opinion on the accord's compatibility with EU law is still pending (See Bridges Weekly, 22 February 2012).

Martin: ACTA may cause more harm than good

Earlier last month, Martin released a draft recommendation to the EU Parliament expressing the same concerns that he officially presented to the EU International Trade Committee (INTA) last week. The document cautioned against ACTA's ambiguities with regard to individual criminalisation, the definition of "commercial-scale" counterfeiting and online piracy, the role of internet service providers, and the possible seizures of in-transit generic medicines.

"The intended benefits of this international agreement are far outweighed by the potential threats to civil liberties," Martin stated in the recommendation.

However, Martin acknowledged that intellectual property is "the raw material of the Union" and recognised that "the problems which ACTA seeks to address are real and growing," inviting the European Commission to come up with new proposals to protect European intellectual property.

Martin also mentioned the possibility of renegotiating the agreement and suggested that the Commission might be able to "go back to other contracting parties" to modify the present text of the treaty after a rejection from the Parliament.

Continued apprehension about agreement's impact on internet freedoms

Martin's recommendation followed an opinion by the European Data Protection Supervisor (EDPS) - an independent authority appointed by the EU Parliament and the European Council devoted to protecting personal data and privacy - which highlights various concerns about the implementation of some provisions of the treaty in the digital environment.

The EDPS underscored that the ACTA provisions regarding intellectual property rights (IPRs) enforcement on the internet "raise concerns from a data protection perspective [and] are highly intrusive to the private sphere of individuals."

"The indiscriminate or widespread monitoring of internet users' behaviour ... in relation to trivial, small-scale not for profit infringement would be disproportionate," notes the document, adding that such measures would also be in violation of EU law.

Meanwhile, Marielle Gallo, the ACTA rapporteur for the EU Committee on Legal Affairs (JURI), expressed her support for the pact and proposed that the EP give its consent. JURI is one of the four committees that is expected to submit an opinion to the INTA prior to the trade committee issuing its recommendation to Parliament.

"ACTA does not create new intellectual property rights for the Contracting Parties. In other words, that which is currently protected by European legislation remains protected; that which was not protected is still not protected," Gallo stated.

The INTA has postponed its vote on a final recommendation to the EU Parliament until June to allow more time for discussions and let other committees draft their opinions. The final Parliamentary vote is expected to take place in July.

ICTSD reporting; "ACTA: reject and maybe renegotiate, says European Parliament rapporteur," INTA, 25 April 2012; "Euro MP David Martin dismisses anti-counterfeiting treaty," BBC NEWS, 16 April 2012; "EU privacy chief warns of internet spying threat," REUTERS, 24 April 2012.

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