[A2k] ACTA resolution contains fundamental flaws
ante at ffii.org
Thu Jan 20 08:18:07 PST 2011
A group of prominent European academics has released today an opinion on the
Anti-Counterfeiting Trade Agreement (ACTA). The opinion identifies the most
critical aspects of ACTA and invites European and national institutions to
carefully consider the opinion before ratifying the
Agreement or withholding consent.
Below an FFII blog post explaining European Parliament resolution flaws
originate in Commission statements.
ACTA resolution contains fundamental flaws
January 20, 2011
The resolution on the Anti-Counterfeiting Trade Agreement (ACTA) adopted by
the European Parliament on November 24th 2010, contains fundamental flaws. The
resolution expresses a belief that ACTA can not change present EU laws. This
belief is unfounded and scrutiny reveals that ACTA can and does change present
EU laws. The FFII published a document comparing ACTA and EU legislation.
European Academics found inconsistencies as well.
What went wrong?
The resolution expresses that ACTA is concerned solely with enforcement
measures and does not include provisions modifying the substantive
intellectual property rights law of the EU and therefore does not imply any
change to present EU laws.
ACTA’s enforcement measures can indeed not change EU substantive intellectual
property rights law. But they can and do change EU enforcement law. The
Parliament here overlooks that some EU laws, such as the Enforcement of IPR
Directive and the IPR Customs Regulation, regard enforcement measures. The
source of the misconception is wrong information provided by EU trade
Commissioner Karel De Gucht.
On July 13th 2010, during a European Parliament LIBE committee meeting, De
Gucht made a confusing statement. Speaking about protection against laptop
border searches, the EU IPR Customs Regulation and ACTA, De Gucht said: “This
is in fact not part of ACTA, it’s part of the European law, whether you can do
that or not. It is part of the material law, ACTA is procedural law. These
provisions you do not find them in ACTA, but you have to fall back on either
EU law or on national law. That’s the reason you don’t find this in the text
of ACTA because ACTA is about procedures, about enforcement. It is not about
what you can enforce, it is how you can enforce something. What you can
enforce are not part of the material law of the European law in the example
that was just given.” (video, at 18 minutes)
Contrary to what De Gucht said, whether border officials can do something or
not is not part of material law, but is part of procedural (enforcement) law.
The EU IPR Customs Regulation and ACTA both are about enforcement law. By
saying that the EU law is in another field, De Gucht wrongly created the
impression ACTA can not touch upon EU law. De Gucht mixed up basic legal
concepts. The Parliament copied this misconception.
Conflicting with its earlier statement, the resolution later on acknowledges
the existence of EU enforcement legislation. The resolution emphasises that
ACTA will not change present EU laws in terms of IPR enforcement, because EU
law is already considerably more advanced than the current international
standards – following another Commission statement.
The EU laws indeed go beyond current international standards. On top of that,
ACTA even goes beyond present EU legislation with regards to injunctions,
damages, trade mark border measures and criminal measures. Despite prior
Parliamentary questions, the Commission failed to address these issues during
the legal verification. The Commission promised there would be no
harmonisation or changes to EU legislation through the back door, but failed
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