Cabinet Beau de Loménie
Following confidential negotiations, the Anti-Counterfeiting Trade Agreement (ACTA) is now ready for signature by every country which participated to its negotiation, and then by any other member of the WTO (World Trade Organization) once it is implemented.
This new Agreement, whose final draft was signed by the Executive Committee of the European Union on January 26, 2012, aims at increasing the efficiency of the regulations which provide for the respect of intellectual property rights, and at establishing international standards in order to strengthen intellectual property rights, specifically on the Internet.
Although the Agreement provides a period for signatures up to May 1st, 2013, national procedures for authorizing signature look sensitive. Furthermore, without being categorical, the text itself appears not to be completely satisfactory for certain of the negotiating states, such as the U.S., Mexico or some European countries such as Germany or the Netherlands.
Regarding the European Union, ACTA is a mixed agreement which, in part, falls under the exclusive responsibility of the European Union and, in part, comes under the joint responsibility of the European Union and the member States. The Agreement will therefore have to be transposed into national legislation in order to be applicable.
Nevertheless, negotiations on this treaty may not be completely finished, considering the difficulties that are being met within the European Union itself for obtaining this treaty’s signature.
Indeed, the confidential nature of the negotiations held by the European Commission, at the periphery of the dedicated institutional organizations (WIPO – WTO), had led the European Parliament to adopt a resolution (March 10, 2010, resolution) reminding the Commission of its obligations, notably regarding the “public access to European Parliament, Council and Commission documents” and, as a consequence of the Lisbon Treaty, the Parliament will have to give its agreement to the content of ACTA before it can come into force in the European Union.
Since the end of February, matters have been accelerating. On February 22, 2012, the European Commission decided to refer to the Court of Justice of the European Union the question of potential breaches this Agreement might constitute in the fundamental rights of the Union. This decision probably was made in view of the existence of a petition signed by 2.5 million individuals, which was then given to the EU Parliament on February 28, 2012.
Also on February 28, the European Parliament Rapporteur indicated during a press conference: “We feel it is better to submit our own legal request to the Court of Justice instead of trying to agree a text with the European Commission”.
The European Parliament has, meanwhile, set up a consultation process with different commissions (industry, development, legal affairs, justice etc.) which will have to suggest a recommendation regarding acceptance or rejection of this Agreement.
The European Union therefore still is quite far away from the period of ratification.
As to the Treaty itself, this contains six chapters and more specifically, a Chapter 2 headed “Legal framework for enforcement of intellectual property rights”. Despite a reference to TRIPS governing all intellectual property rights, including patents, the vast majority concern Trademarks and Copyright.
It includes the obligation to put in place civil enforcement measures as well as criminal proceedings and penalties, at least for willful trademark counterfeiting or pirating acts committed on a commercial scale against copyright. Border measures could also apply to goods in transit, notably generic drugs, or any other suspect goods, under the control of the customs authorities and on their own initiative (Section 3). It also provides for the right to obtain information as to the means of production and the distribution channels of counterfeiting products, or allegedly counterfeiting products (Section 2).
The same Chapter 2 also includes the obligation to take measures regarding the protection of Intellectual Property in the digital environment, including interim measures, consistent with the respect of economic growth, freedom of speech and privacy. It specifically stipulates that internet providers can be forced to provide information and that the circumvention of effective technological measures that are used by authors, performers or producers of phonograms to prevent unauthorized copies should be punished (Section 5).
Those stipulations are the most hotly contested.
The treaty finally includes a Chapter 4 “International Cooperation” which notably provides for the implementation of a proceeding of sharing of information between the signatory Parties in order to facilitate the application of the Agreement.
Accused, by the supporters of the free copying and circulation of works on the Internet, of being inimical to freedom, ACTA is the subject of particularly lively controversy and mass mobilization. It is certain that the way it has been negotiated and adopted was not conducive to setting up a peaceful debate between the various stakeholders in the Internet, be they users, rights owners, or access-providers or hosting companies. Let us hope that the consultations that have been implemented and are now ongoing will allow such debate.