July 19, 2011

European Parliament ACTA study

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Act on ACTA refers to a European Parliament Trade Committee commissioned study on ACTA (pdf). The study highlights problematic aspects of ACTA and makes recommendations (see below). According to the study, “unconditional consent would be an inappropriate response”, and “There does not therefore appear to be any immediate benefit from ACTA for EU citizens”. The study confirms ACTA goes beyond current EU legislation. It recommends asking the European Court of Justice an opinion on ACTA.

The study’s weaknesses:
– uncritical of industry numbers on piracy and counterfeiting,
– uncritical of OECD numbers on piracy and counterfeiting which are based on the industry numbers,
– lacks to incorporate findings from the Hargreaves report and the Media Piracy in Emerging Economies study,
– fails to see the right approach with regards to fake inefficient or hazardous medicaments,
the havoc patent trolls are causing is not mentioned,
– no assessment of the effects ACTA may have on the software sector, on availability of medical and diagnostic methods and instruments,
– no assessment of the effects ACTA may have on green innovation and diffusion of green technology, needed to fight climate change,
– no assessment of the effects ACTA may have on public health surveillance and crisis management,
– no assessment of the effects ACTA may have on diffusion of food technology,
– not all deviations from the current EU law are mentioned, or they are not mentioned in the summary and recommendations,
– fails to notice some fundamental rights issues.
– the huge EU deficit on IP is not mentioned in the text.

As a result, the INTA study’s recommendations do not provide a solution to all issues, nor do they describe the remaining issues in full.

With regards to access to medicines, the INTA study concludes that adding some annotations will solve the problems. There is a huge gap between the paper reality of the INTA study and the reality in the streets: people are dying because they have no access to medicines.

The INTA study aims too low: “The first thing to note is that access to medicines is affected by two major IP categories: patents and trademarks. How these are treated by the ACTA therefore affects how the EU will manage its domestic market for access to medicines as well as how well it will meet its international obligations on public health.”

Just meeting our “international obligations on public health” is by far not enough. We leave in place, and reinforce with ACTA, low-volume high-profit strategies.

The INTA study does not assess the effects ACTA may have on green innovation and diffusion of green technology, needed to fight climate change. It would be irresponsible to give consent to ACTA without an impact assessment on these issues. The European Parliament Committee on Environment, Public Health and Food Safety should commission a study on the effects ACTA may have on public health, the environment and diffusion of food technology.

ACTA threatens the very foundation of the EU IP policy: to become more innovative. Note that ACTA is soft law for the US, hard law for the EU. The US president does not even dare to propose Congress to ratify ACTA, why should the European Parliament ratify ACTA?

With its high deficit on IP trade, the EU has a bigger need for flexibility than the US. While the US has a surplus, it still strives to be not bound by ACTA. While the EU has a deficit, the Commission still accepts being bound to higher damages and stronger measures that can be used against European companies. This approach does not seem rational.

See also: Some EU documents on the European Parliament study on ACTA released

Recommendations in the study:

– unconditional consent would be an inappropriate response from the European Parliament given the issues that have been identified with ACTA at it stands.

In particular we recommend the Parliament consider that its conditional consent include:
– annotating the text with additions from the TRIPS Agreement outlining the mandatory safeguards that ACTA has omitted to mention in areas such as provisional measures;
– annotating the text, with an accompanying resolution, with additions from the TRIPS Agreement outlining the optional safeguards that ACTA has left open to be implemented in a manner supportive of the Doha Declaration on TRIPS and Public Health. In particular, the European Parliament should address the matter of border measures by recommending that member states exclude patents from the application of in- transit procedures. Such procedures should be limited to counterfeit trademark goods as defined by ACTA Article 5(d). This is possible because the application of in-transit procedures is an optional element of ACT;
– an accompanying statement to the EU instrument ratifying ACTA that Article 13 is interpreted by the European Union in such a way as to allow the exclusion of pharmaceutical patents and trademark infringements other than counterfeit trademark goods from the application of border measures, especially in-transit procedures.

– for those European Parliamentarians for whom conformity with the EU Acquis is sine qua non for granting consent, this study cannot recommend that they provide such consent to ACTA as it now stands.

For those European Parliamentarians for whom conformity with the existing EU Acquis is not sine qua non, such consent should consider modifications that include:
– Amending Article 2 of the IPRs Customs Regulation to include, within the scope of border measures, all violations of trademark and copyright infringements.
– Seeking clarification, before ratification of ACTA, from the European Court of Justice that the criteria envisaged by the ACTA for the quantification of the compensatory damages would not amount to a violation of the criterion of “appropriateness of the damage to the actual prejudice suffered” envisaged in the Enforcement of IPRs Directive;
– Creating a legislative framework for how information sharing under ACTA should take place, based on the “Opinion of the European Data Protection Supervisor.”

– the European Parliament should make it clear that its consent to ACTA as a whole is conditional on member states, represented by the Council, committing to implement ACTA in a manner that maintains the safeguards and scope that the Parliament outlined in the previous legislative attempt at harmonisation of criminal enforcement of intellectual property .

numbers on piracy and counterfeiting