Date: 19 July 2011
Source: ACTA BLOG

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 .

Keywords: European / ACTA / Parliament