The post-mortem on ACTA

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

The effects of the ACTA are serious and far-reaching, touching the health and lives of people in poorer countries worldwide. The ambiguity with which the treaty is written provides significant scope for improper implementation with the potential to create more harm than benefit, argues Andreas Geiger.

Dr Andreas Geiger is Managing Partner of EU lobbying firm Alber & Geiger.

"The collapse of the Anti-Counterfeiting Trade Agreement (ACTA) in the plenary session of the European Parliament on 4 July brings a great victory for opponents of the fiercely disputed and controversial treaty.

ACTA is a multinational treaty aimed at establishing international standards for intellectual property rights, i.e. to target counterfeit goods, generic medicines, or copyright infringements. The agreement seeks to create a new governing body outside of the existing forums such as the World Trade Organization, the World Intellectual Property Organization and the United Nations.

The vote comes as negative attitudes of relevant Committees within the European Parliament, including the Legal Affairs, Civil Liberties, and Industry Committees, prevailed, giving weight to the comment that the treaty is “politically dead”. Under the Lisbon Treaty, the European Parliament must first authorise international commercial agreements before they can enter into force.

The European Commission remains committed to seeking the European Court of Justice’s opinion on the agreement, the Commissioner for Trade, Karel de Gucht, saying that the Commission would still pursue the pending case. Nevertheless, MEPs have made clear their wish for the agreement to “disappear” for good. They also refuted the Commissioner’s claims that ACTA could still be salvaged, even if the Court approves the agreement in its pending case. ACTA has caused widespread protests across Europe.

Supporters have described the agreement as a response to the increase in global trade of counterfeit goods and pirated copyright protected works. Opponents argue that the interests of those holding intellectual property rights would be given superiority over civil liberties and fundamental human rights. In particular, it has been argued that freedom of expression would be increasingly regulated by private companies given that ACTA imposes a duty to control the online content of third parties.

This duty would oblige internet service providers to control the online content of their subscribers, for example. ACTA also represents a serious obstacle in the usage of a cultural/national heritage, as it increases threats of criminal sanctions in cases where a holder of intellectual property rights is unknown or impossible to trace.

One of the most controversial areas touched by ACTA is the restriction on the production of cheaper generic medicines, i.e. the medicines equivalent to the original and tradable on the market after the patent protection expiry. Such products are used especially in developing countries whose pharmaceutical industries are insignificant or non-existent.

The effects of ACTA are serious and far-reaching, touching the health and lives of people in poorer countries worldwide. The ambiguity with which the treaty is written provides significant scope for improper implementation with the potential to create more harm than benefit. The treaty was signed by the USA, Australia, Canada, Morocco, New Zealand, South Korea and Japan in October 2011.

The EU, excepting Estonia, Slovakia, the Netherlands, Cyprus and Germany, signed ACTA in January this year. Members of the European Parliament did admit the possibility that the agreement could be revived if controversial pieces of the treaty, such as those relating to online content regulations, were deleted.

Should such a deletion take place, the change would require approval by non-EU states party to the agreement, such as the USA. The USA can theoretically decide to “continue” on its own if the agreement is authorised by six of its states."

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