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On 22 May 2012, the European rapporteur for ACTA, David Martin,
strongly recommended against the Treaty, saying that the intended
benefits of the Treaty were far outweighed by the potential threats
to civil liberties and given the vagueness of certain aspects of
the text and the uncertainty over its interpretation, the European
Parliament cannot guarantee adequate protection for citizens'
rights in the future under ACTA.
ACTA has caused a great deal of controversy during the past
years. The Multilateral Treaty aimed to establish an international
legal framework to targeting counterfeit goods, generic medicines
and copyright infringements on the Internet. It intended to
create a new governing body outside existing forums, such as the
WTO, the WIPO and the UN. The first leaked versions of the
ACTA treaty showed the implementation of a couple of severe
measures, with little respect to the fundamental rights, such as
the monitoring obligation of Internet Service Providers or the
"three strikes and you are out" rule. Several concerns
remained unanswered, and some of the provisions left too much room
for interpretation, and could eventually lead to perverse
outcomes.
For example, Article 27 of the Treaty, concerning the
enforcement in the digital environment stipulated that enforcement
procedures would apply to an infringement of copyright or related
rights over digital networks, which may have included the unlawful
use of means of widespread distribution for infringing purposes.
Nonetheless, the Treaty does not give the Parties a wildcard to
employ any kind of enforcement. After all, the same articles stated
that these procedures should be implemented in a manner that avoids
the creation of barriers to legitimate activities, for example
e-commerce. Moreover, it had to be consistent with a Party's
legislation, and it had to preserve the fundamental principles such
as freedom of expression, fair process, and privacy. However, there
were still some concerns given that the Treaty provided that these
procedures could be put into place in the context of the
cooperation between the Right Holders and the Internet Service
Providers. This could have resulted in the fact that the latter
would be able to monitor, or hand out penalties to its users and
thus circumvent the judicial system.
Furthermore, article 27 left also the door open to privacy
issues because it allowed that an Internet Service Provider could
be ordered to disclose expeditiously to a right holder information
sufficient to identify a subscriber whose account was allegedly
used for infringement, where that right holder has filed a
complaint, and where such information is being sought for the
purpose of protecting or enforcing those rights. Given the Treaty
did not provide a definition of the competent authority to order an
Internet Service Provider to disclose this kind of information, it
would be possible for the Right Holder to obtain the personal
information of an alleged infringer without a court order.
In addition article 23 of ACTA intended to criminalize
commercial-scale intellectual property infringements, without
explaining the notion "commercial-scale". Hence,
considering the ambiguity of this term, the provisions could target
anyone who uploaded a copyright protected song or picture on his
blog or shared protected works through a P2P network.
The main reasons for the rejection lay in the fact that the
treaty has been negotiated behind closed doors. The European
Parliament deplored that the parties to the treaty decided not to
negotiate through the well-established bodies such as WIPO and WTO,
which have established frameworks for public information and public
consultation. The Parliament also pointed out that it has
made many efforts to harmonize IPR enforcement measures the past
years and the ACTA treaty negotiations totally circumvent the
normal EU decision-making process.
The European Commission on the other hand is not giving up and
will suggest modifications to the Treaty in order to meet the
different concerns.
The vote of the European Parliament does not mean that Europe
turns a blind eye on counterfeiting or any other intellectual
property infringements. It merely implies that the safeguard of the
fundamental rights is as important as the protection of
intellectual property rights.
Although ACTA might have caused little change on European
regulations, it has been made clear that the democratic process in
this kind of legislation needs to be respected.
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