[spectre] A study on Acta from the European Parliament

[Nicolas Maleve]

As a follow-up to the Expression of Concern regarding ACTA
(http://labtolab.org/~labtolab/wiki/index.php/Acta_expression_of_concern),
a mailing list has been created to spread new information about the
Agreement. It will also be the place to exchange ideas for action and
debate different strategies.
https://listes.domainepublic.net/listinfo/acta
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European Parliament ACTA study
July 19, 2011
By Ante

The study: http://t.co/KgAlGlV
The source: http://acta.ffii.org/?p=681

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.

Weaknesses in the study are at least:
- uncritical of OECD and industry numbers on piracy and counterfeiting, -
the lack to incorporate findings from the Hargreaves report and the Media
Piracy in Emerging Economies study,
- no assessment of the effects ACTA may have on green innovation and
diffusion of green tech.

Problematic with the study is that it provides the Parliament a way to
adopt ACTA with some reservations, leaving serious issues unsolved, and
pre-empting important domestic debates.

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 .




_______________________________________________
Acta mailing list
Acta at lists.constantvzw.org
https://listes.domainepublic.net/listinfo/acta


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