[Ip-health] European Parliament ACTA study

Ante ante at ffii.org
Tue Jul 19 06:31:57 PDT 2011


study: http://t.co/KgAlGlV (pdf)
blog with links:
http://acta.ffii.org/?p=681


European Parliament ACTA study
July 19, 2011
By Ante

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 .





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