Out-Law News 5 min. read

ACTA 'clarifications' may follow despite another recommendation to reject the treaty

The European Commission may provide "clarifications" about a controversial international treaty on intellectual property rights (IPR) enforcement even if the agreement is ruled to be compliant with the fundamental principles of EU law, the EU's Trade Commissioner has said.

Karel De Gucht made the announcement in a speech at the European Parliament on Wednesday where he urged members of the International Trade Committee (ITC) to approve the ratification of the Anti-Counterfeiting Trade Agreement (ACTA).

Today, though, the ITC voted 19-12 in favour of recommending that the Parliament does not ratify the text, according to digital rights campaigners the Open Rights Group (ORG).

However, in his speech De Gucht warned that a 'no' vote by the ITC would not stop the European Commission's bid to have ACTA scrutinised by the European Court of Justice (ECJ). He added that he expects the ECJ to rule that ACTA does comply with cornerstone principles of EU law but that even if it does the Commission could still seek to explain in more detail some of the practical meaning of the text.

Earlier this year the Commission said it had "unanimously" agreed to ask the ECJ if "the Anti-Counterfeiting Trade Agreement (ACTA) [is] compatible with the European Treaties, in particular with the Charter of Fundamental Rights of the European Union". The Charter contains a number of principles central to the operation of EU law and includes rights to the protection of intellectual property, rights to privacy, free speech, the freedom to conduct business, and protection of personal data.

"If the Court questions the conformity of the agreement with the Treaties we will assess at that stage how this can be addressed," De Gucht said in his speech. "However, I expect that the Court will instead find ACTA to be fully in conformity with the Treaties."

"In that case, we will be prepared to do two things: First, I would consider proposing some clarifications to ACTA. For example on enforcement in the digital environment. We could look at this in the light of the discussions you will have had on legislative proposals which the European Commission is set to put before the Parliament and the Council. Or for example, we could seek to clarify further the meaning of 'commercial scale'," he said.

"I am also open to a discussion on what sharing information means in relation to the challenges one faces with respect to the protection of intellectual property. It is indeed a new challenge for the classical approach of IPR. But does this discussion not rather have its place in the debate on the substantive law, not in ACTA, which is solely about enforcement? These are important reasons to pause for reflection as I believe we will all make a better decision on ACTA if we have a clearer view of the future direction of the European intellectual property system," the Commissioner said.

De Gucht added that the "consent" of the European Parliament would be sought on the "possible clarifications."

ACTA requires member countries to have in place "enforcement procedures" under national laws that allow for "effective" action to be taken against IP infringers that is both "expeditious" and a suitable "deterrent to further infringements". However, its provisions relating to the enforcement of IP rights that exist in "the digital environment" that have proved particularly unpopular with campaigners for digital rights.

ACTA states that acts of ‘wilful copyright piracy’ or ‘wilful related rights piracy’ committed ‘on a commercial scale’ would be considered criminal offences and that offenders could face imprisonment or fines as a result. However, the EU's own privacy watchdog, the European Data Protection Supervisor (EDPS), said in April that the treaty "appears to create new categories of offences that would be subject to criminal enforcement" without defining what particular acts could lead to such sanctions as is required to provide "legal certainty".

The EDPS said that he "regrets that the notion of 'commercial scale' is not defined with sufficient precision and that acts carried out by private users for personal and not-for profit purpose are not expressly excluded from the scope of the Agreement."

He added that ACTA implies that rights holders will in some form monitor use of the internet to identify alleged infringements of their rights by individuals in order to seek an injunction against individuals. Such activity would amount to processing of "sensitive data" because it would relate to suspected offenders, he said, and that widespread monitoring by rights holders would be neither necessary nor proportionate and would not be justified.

In February thousands of people took to the streets of cities across Europe to protest against the impact they believe ACTA would have on internet freedoms. This action followed the decision by the UK, and 21 other EU member countries, to sign up to ACTA in January. Australia, Canada, Japan, South Korea, Morocco, New Zealand, Singapore and the US signed ACTA in October last year.

However, the EU signatories and the European Parliament must both approve the text before it can come into effect. The ITC is the main committee charged with advising MEPs on the matter and the ORG said its recommendations were to be welcomed.

"MEPs have listened to the many, many thousands of people across Europe who have consistently demanded that this flawed treaty is kicked out," Peter Bradwell of the ORG said in a statement.

"This is the 5th consecutive committee to say ACTA should be rejected. It now falls to the vote of the whole European Parliament in early July to slam the door on ACTA once and for all, and bring this sorry mess to an end," he added.

However, in his speech De Gucht had warned about the perception there would be of Europe outside of the continent if the ITC did issue a 'no' vote.

"We are in an economic crisis," he said. "If Europe wants to have a successful economy it needs firms that can compete for the tasks that add the highest value to a product. And the way they make money and create jobs from those ideas is by turning them into intellectual property, protecting them under the law and ensuring the law is enforced."

"So as you come to make your choice about how to vote [on Thursday], I believe you also need to consider the signal you will be sending to the rest of the world," De Gucht added.

Subsequent to the public protests on ACTA a number of the EU signatories, including Poland and the Czech Republic, expressed concern with the proposed text and suspended their "ratification" of it. In addition, Germany and Switzerland have also postponed their signing of the text.

Concerns have also been raised  about the secrecy in which ACTA was negotiated, with a rapporteur on the text at the European Parliament previously resigning in protest over the ACTA signing process, which he referred to as a "charade".

Supporters of the text insist that ACTA merely strengthens enforcement powers relating to IP rights under existing laws and would not alter the way IP rights themselves are protected.

The "effective enforcement" of IP rights is "critical to sustaining economic growth across all industries and globally," the ACTA text itself states.

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