The situation of ACTA in Europe
One of the most controversial issues concerning the international protection of Intellectual Property is the adoption of the Anti-Counterfeiting Trade Agreement (ACTA). As it might be recalled, several Contracting parties met in Japan for the signing of the Treaty on October 1st 2011. However, in order for ACTA to enter into force, it has to be ratified by the national parliaments of each contracting party. In the case of the European Union, ACTA must be ratified by each of the 27 member States, and the Council of Ministers of the EU after the European Parliament has given its consent.
At present, it is not clear whether the European Parliament will finally give its consent to ACTA. The voting in the Plenary is scheduled for next June. The draft opinion of the rapporteur for the Legal Affairs Committee recommends passing the agreement. However, the rapporteurs for the Industry, Research and Energy Committee and the International Trade Committee (in this latter case is the personal opinion of the rapporteur himself) have expressed their opinions for the rejection of ACTA. The same opinion is shared by the Social Democrats and so it is by the members of the Pirate Party.
The opinions against ACTA raised by these members of the European Parliament are certainly justified. ACTA has raised general discontent upon the inaccuracy inherent to several key aspects of its wording, namely the vague definition of “commercial scale”, the role which is to be played by ISPs (Internet Service Providers) or the possibility of interrupting the transit of generic medicines, just to name a few. Also, the secrecy surrounding the signing of ACTA sowed mistrust among a significant part of the EU society and EU institutions. Because of this, the European Commission recently asked the Court of Justice of the European Union (CJUE) to issue an opinion on whether or not such international treaty is respectful with civil liberties and fundamental rights under the EU law.
ACTA has several weaknesses. For instance, it is to be seen whether the concept of “commercial scale” is compatible with the case law of the WTO Dispute Settlement Body. However, some concerns raised are far from being legally founded: nothing in ACTA mandates its contracting parties to modify the actual regime applicable to ISPs. They are not forced by ACTA to help authorities to chase infringers beyond their current obligations in relation thereto. A recent study commissioned by the European Parliament shows the overall compatibility of ACTA with the existing “acquis communautaire”.
ACTA certainly entails an enhancement of the level of protection of intellectual property which might be detrimental for developing countries if they are obliged to adopt it. Without any flexibility in the implementation of these measures to national law, these countries may experience difficulties to ensure access to medicines by the poorest parts of their populations, access to knowledge and innovation, or new obstacles to the development of the agricultural industry might appear. ACTA is not the treaty to solve those concerns. Furthermore, from the point of view of the European Union, we must protect our interests: we must be aware that the European economic model is based on innovation and research (in this sense, Europe2020). If we want our enterprises to compete in the global market, their innovative and research activities must be properly protected both internally and internationally. For that reason, the European institutions should give their O.K. to ACTA.
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