ACTA: time to sign?

The Anti-Counterfeiting Trade Agreement (ACTA) is now ready for signature once it is implemented.

This new agreement, the final draft of which was signed by the executive committee of the European Union on January 26, 2012, aims to increase the efficiency of the regulations which provide for the respect of intellectual property rights, and to establish international standards in order to strengthen IP rights, specifically on the Internet.

Although the agreement provides a period for signatures up to May 1, 2013, national procedures for authorising the signature look sensitive.

Regarding the EU, ACTA is a mixed agreement and has to be agreed to by the European Parliament and then transposed into national legislation in order to be applicable.

Nevertheless, negotiations on this treaty may not be completely finished, considering the difficulties within the EU itself in getting the treaty signed.

Indeed, the confidential nature of the negotiations held by the European Commission on the peripheries of the dedicated institutional organisations (WIPO, WTO), led the European Parliament to adopt a resolution reminding the Commission of its obligations, notably regarding the “public access to European Parliament, Council and Commission documents”.

Since the end of February, matters have been accelerating. On February 22, 2012, the European Commission decided to refer the question of potential breaches of the fundamental rights of the Union to the Court of Justice of the EU.

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 recommend accepting or rejecting the agreement. The EU is still, therefore, quite far away from the period of ratification.

"The majority of these rules already exist in France. However, ACTA may have some impact on customs' regulations and powers of inquiries."

As to the treaty itself, this contains six chapters including one titled Legal framework for enforcement of IP rights. Despite a reference to the WTO’s Trade-Related Aspects of IP Rights (TRIPS) Agreement governing all IP rights, including patents, the vast majority concerns trademarks and copyright.

This chapter includes the obligation to put in place civil enforcement measures as well as criminal proceedings and penalties, at least for wilful 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 majority of these rules already exist in France. However, ACTA may have some impact on customs’ regulations and powers of inquiries.

This chapter also includes the obligation to take measures regarding the protection of IP in the digital environment, including interim measures, which respect economic growth, freedom of speech and privacy. It specifically stipulates that Internet providers can be forced to provide information and that techniques to circumvent effective technological measures that are used by authors, performers or producers of phonograms to prevent unauthorised copies should be punished (Section 5).

These stipulations are hotly contested in France, and more widely in Europe. A petition has already been signed by 2.5 million individuals, and several demonstrations have been organised in different towns in France by people wearing the mask of the ‘Anonymous’ group.

Accused of being inimical to freedom, ACTA is the subject of particularly lively controversy and mass mobilisation. The way it has been negotiated and adopted was certainly not conducive to setting up a peaceful debate between the various stakeholders in the Internet, be they users, rights owners, access-providers or hosting companies. Let us hope that the consultations that have been implemented, and are now continuing, will allow such debate.