[Ip-health] Acta goes too far, says MEP
Riaz K Tayob
riaz.tayob at gmail.com
Thu Feb 2 00:46:29 PST 2012
Acta goes too far, says MEP
Kader Arif, the lead Acta negotiator in the European Parliament, says
Acta potentially cuts access to lifesaving generic drugs and restricts
Charles Arthur <http://www.guardian.co.uk/profile/charlesarthur>
* guardian.co.uk <http://www.guardian.co.uk/>, Wednesday 1 February
2012 14.39 GMT
* Article history
French MEP Kader Arif says Acta threatens online freedom and access to
the use of generic versions of drugs for treating illnesses. Photograph:
The French MEP who resigned his position in charge of negotiating the
international Anti-Counterfeiting Trade Agreement (Acta) has said it
"goes too far" by potentially cutting access to lifesaving generic drugs
and restricting internet <http://www.guardian.co.uk/technology/internet>
In an exclusive interview with the Guardian, Kader Arif -- a member of
the European parliament's international trade group, who was the lead
negotiator over Acta -- said that despite talks over the agreement
having begun in 2007, "the European parliament, which represents the
rights of the people, had no access to this mandate, neither had it
information of the position defended by the commission or the demands of
the other parties to the agreement".
Arif resigned in protest on 26 January as the EU signed the treaty,
saying that he wished to "denounce in the strongest manner the process
that led to the signing of this agreement: no association of civil
society [and] lack of transparency from the beginning".
He said that it now threatens online freedom, access to the use of
generic versions of drugs for treating illnesses, and could potentially
mean that someone crossing a border who has a single song or film on
their computer could face criminal charges.
Asked what he thought European citizens should do, Mr Arif said:
"Showing that there is interest and concern about this agreement is the
best way of creating a real public debate, which was never possible
until now because of the lack of transparency on this dossier.
Especially if the timeframe is short, raising awareness of members of
parliament will be crucial. And because Acta is a mixed agreement, it
will have to be ratified both by the European parliament and by every
member state of the union, so there is also an opportunity to organise
debates at the national level."
He says that it is now impossible to renegotiate the agreement because
the 11 key parties to it concluded their discussions on 1 October 2011:
"the European commission negotiated it on behalf of the EU, on the basis
of a mandate given by the member states in 2007."
That means, he says, that "at this stage one can only accept or reject
the agreement -- no change of the text is possible. If the right wing of
the European parliament had not imposed such a tight calendar, the
members of the European parliament could have drafted an interim report,
which would have put conditionalities to the ratification of the
agreement, by giving recommendations to the commission and member states
on how to implement it. But this is no longer a feasible option."
"The title of this agreement is misleading, because it's not only about
counterfeiting, it's about the violation of intellectual property
<http://www.guardian.co.uk/law/intellectual-property> rights," he told
the Guardian. "There is a major difference between these two concepts."
Acta has triggered public protests in a number of European and other
as well as online attacks by the hacking collective Anonymous. The US,
EU member states, Australia, New Zealand, Canada, Japan and a number of
other countries have signed it, although none has yet ratified it in
The agreement would create an international framework and set of
standards for a voluntary legal regime to enforce intellectual property
rights across national boundaries.
Arif said one example illustrates this difference particularly well --
the case of generic medicines. "Generic medicines are not counterfeited
medicines; they are not the fake version of a drug; they are a generic
version of a drug, produced either because the patent on the original
drug has expired, or because a country has to put in place public health
policies," he said.
A number of countries such as India and African nations have sought to
use generic versions of drugs for infections such as HIV, which has
often been resisted by pharmaceutical companies. Under Acta, Arif fears
such countries would not have the same freedom to determine their own
"There are international agreements, such as the Trips agreement
foresees this last possibility," he said. "They're particularly
important for developing countries which cannot afford to pay for
patented HIV drugs, for example.
"The problem with Acta is that, by focusing on the fight against
violation of intellectual property rights in general, it treats a
generic drug just as a counterfeited drug. This means the patent holder
can stop the shipping of the drugs to a developing country, seize the
cargo and even order the destruction of the drugs as a preventive measure."
He thinks that is a key flaw: "Acta also limits the flexibilities listed
in the Trips agreements to support developing countries in need of
generic drugs. When the question of finding the right equilibrium
between protection of intellectual property rights and protection of
final users is so crucial, Acta appears to be very unbalanced in favour
of patent holders. This is one of the major problems with the agreement."
Internet freedoms could also be under threat if Acta is ratified in its
present form, he says. "The chapter on internet is particularly worrying
as some experts consider it reintroduces the concept of liability of
internet providers, which is clearly excluded in the European
legislation." That could make ISPs, who provide internet access, liable
for users' illicit file-sharing.
Arif also expressed concern that there could be more intrusive checks at
borders to fight counterfeiting.
"I see a great risk concerning checks at borders, and the agreement
foresees criminal sanctions against people using counterfeited products
as a commercial activity," he said.
"This is relevant for the trade of fake shoes or bags for example, but
what about data downloaded from the internet? If a customs officer
considers that you may set up a commercial activity just by having one
movie or one song on your computer, which is true in theory, you could
face criminal sanctions.
"I don't want people to have their laptops or MP3 players searched at
borders, there needs to be a clearer distinction between normal citizens
and counterfeiters which trade fake products as a commercial activity.
Acta goes too far."
The text of the finalised treaty (PDF)
has now been made public, and the European commission has begun to try
to explain how Acta would work. It has also published a document called
10 Myths about Acta
asserting that the public was informed "since the launch of the
negotiations"; that it is drafted "in very flexible terms" and that
"safeguards and exceptions under EU law or under the Trips agreement
remain fully preserved".
It also insists that "Acta is about tackling large-scale illegal
activity ... there is a provision on Acta specifically exempting
travellers from checks if the infringing goods are of a non-commercial
nature and not part of large-scale trafficking".
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