Th.Ruddy's Report



Report from a civil society meeting in Brussels on 25 Jan 2011 about the Anti-Counterfeiting Trade Agreement (ACTA)


Update: de Gucht responds to MEP Françoise Castex. Says ACTA is binding agreement, consistent with EU 'acquis'
Update 2011 Feb.25:  Comments to USTR Submitted for ACTA: Thirty Professors Say It Requires Congressional Approval


DG Trade was represented  by Pedro Velasco Martins, Acting Head of Unit, Public Procurement and Intellectual Property, who has been an ACTA negotiator.

Negotiations ended in mid-November 2010. They were initialized by the Belgian Presidency, not the Commission. The Council has agreed with unanimous EU Member State (MS) support. No implementation on the MS level will be required. However the Council is still to sign the agreement, and in parallel, the Parliament must still give its consent  [i.e. ratify] in this post-Lisbon Treaty time. There is a question as to whether ACTA will comprise a "mixed-competence agreement", in which case ratification would be required in EU MS and take a couple of years. There are no precedents yet, so the process is hard to predict.

Mr .Martins admitted that there have been "three main criticisms", which he attempted to allay:
  1. impact on fundamental rights (such as privacy), but added that no evidence has been shown that these have been violated.
  2. the "Access to Essential Medicines" clause in the Doha Declaration: Martins reported that the Commssion has introduced references to TRIPs and Articles 7+ 8 in the Doha Declaratoin ("safeguards on public health"). Besides, patent infringement are not covered by border controls.
  3. Internet access: Martins said there has never been any three-strikes rule (ref. to HADOPI in France) in the ACTA draft.

Q & A session 

David Hammerstein from TACD reported that in the US the ACTA draft was not considered a treaty,  but rather an executive order, and hence not binding (and would not require ratification). He was told that the draft was "binding where necessary"; but beyond that Martins refused to comment on U.S. measures.

Hammerstein also asked about Viviane Reding's demand for an impact assessment on whether fundamental rights were being violated (such as privacy). He was told that the EU Data Protection Supervisor's report had been given a reply.

Another participant asked about the communiqué...

International Experts Find that Pending Anti-Counterfeiting Trade Agreement Threatens Public Interests: Text of "Urgent ACTA Communiqué" in several languages including English as drafted at a conference at the American University Washington College of Law, Washington D.C. on June 23, 2010.

The answer was that the Commission welcomes a more rational debate and will issue a more detailed reply.

There is unsureness as to how broadly the reference to "commercial scale" in ACTA will be interpreted, how the U.S. exception relying on one's interpretation of the term "fair use" will continue, and a lot of criticism has been raised.

Thomas Ruddy of SERI asked about China, which was the scene of most violations of IPR by counterfeiting, but had not shown up as an ACTA negotaator. He was told that indeed China's role is a wild card, and that ACTA is only one of many instruments determining the future relationship of China to the infringement of IPRs, e.g. the WTO case being brought by the U.S.

Representatives from the Vrijschrift Foundation asked about whether ACTA had really been open to all countries to join, and was reminded that at the Japan G-8 Summit some countries had left the preparatory event.

Updated: 15th Feb. 2011

Surf back up to http://www.wsis.ethz.ch/seri.htm SERI member page Thomas Ruddy

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