The controversial Anti-Counterfeiting Trade Agreement consumed hours of European Parliament time this week as the European Commission sought to persuade lawmakers to approve it. But no matter how often EC officials, academics and lawyers said the treaty will not change EU law, scepticism still remains about its potential impact on digital freedoms and access to generic medicines in developing countries – including from the Parliament member who will author the legislative report.

The week, which saw discussions in the International Trade (INTA) and Industry, Research and Energy (ITRE) committees and a press conference by rapporteur David Martin, of the UK and Socialists and Democrats, who will write the official report for lead committee INTA, ended Thursday evening with a 3 1/2-hour workshop open to the public and webcast. Under the new Lisbon Treaty of the EU, Parliament has the power to approve or reject ACTA but can’t amend it.

EC: Truth in Short Supply

With ACTA, the EU is trying to extend the reach of the enforcement parts of its intellectual property (IP) system beyond its borders, Trade Commissioner Karel De Gucht said at the workshop. “ACTA is an enforcement treaty” meant to help individuals and companies seeking to protect their ideas in the 38 countries that have signed on, he said.

The intense debate and political engagement has been “remarkable,” but in all the discussion, “one commodity has been in short supply” – the truth, De Gucht said. Contrary to claims, the agreement will not violate internet users’ rights, require a “three-strikes” approach to online infringement, mandate border searches of laptops, MP3 players and other devices, or impose restrictions on trade in generic medicines, he said.

The EC has recommended that the text be reviewed by the European Court of Justice, De Gucht said. That ruling should help bring a calm reasoned discussion, something that hasn’t happened so far, he said.

Will ACTA change EU law?

The treaty’s “harm greatly exceeds its potential benefits,” University of Ottawa Law Professor Michael Geist said at the workshop. Among other problems, ACTA expands IP rights by emphasising the concept of secondary liability in order potentially to hold third parties liable for the infringing acts of others, a concept present in many national regimes but a “significant shift” in international law, he said. Another major issue is that many of its provisions are permissive (“may”) rather than mandatory (“shall”), he said. While parties will not be forced to implement these provisions, there will be intense pressure from the US and others to consider them mandatory, he said.

Europe already has a panoply of IP rights protections that are often more binding than ACTA, leading to the question of whether another text is really needed, said Professor Christophe Geiger of the University of Strasbourg Center for International IP Studies. EU laws regarding criminal penalties for infringement have not been harmonised, mainly due to resistance from the European Parliament, he said. Geiger called for “balanced deterrents” against IP violations, saying downloading on the Internet should not be treated the same as selling illegal medicines.

Why is there so much effort, Geiger asked, to adopt a treaty that might not make much difference? The answer is to combat piracy in third countries, he said. ACTA is not for the nations that have signed it, but for those who did not and will not, he said. Its most worrying aspect is its non-transparent approach to negotiating IP rights with like-minded countries, which could weaken the World Trade Organisation and World Intellectual Property Organisation, he said.

ACTA will not cause a significant shift in EU community law but is more stringent than the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, according to a report for the European Parliament by Professors Anselm Kamperman Sanders and Dalindyebo Shabalala, of Maastricht University. ACTA is drafted more broadly than EU legislation and it reinterprets the threshold for piracy and counterfeiting to be lower than those in TRIPS, Sanders said at the workshop. What workshop?

Despite the most contentious provisions having been removed from the text, causes for concern remain, Sanders said. His report found no academics in favour of the agreement and identified areas where he disagreed with them, he said. The report recommended that unconditional consent to ACTA by the European Parliament would be inappropriate given the issues raised, he said.

Impact on Digital Rights and Generic Drug Sales

A third panel considered the treaty’s possible effects on civil liberties and generic drugs.

ACTA is “completely neutral” with regard to the definition of infringements, leaving it to the parties to decide what is illegal copying and other acts, said Olivier Vrins, a partner with ALTIUS Lawyers. It does not require a graduated response, á la the French HADOPI law, permit or encourage website blocking, or change the responsibilities of service or hosting providers, he said. ACTA is not intended to substitute for TRIPS but to complement it, he said, and it expressly preserves basic rights and freedoms, he said. What ACTA will enforce are provisions already existing in EU law, said Rupert Schlegelmilch, director of EC Directorate General Trade (B).

ACTA won’t have any significant impact on access to generic medicines, said Meir Pugatch of the University of Haifa (Israel). Those medicines are being supplied throughout the world and are heavily regulated, he said. The problem is counterfeit drugs that put lives at risk, he said. ACTA does not affect the global supply of generic medicines, he said, arguing that border seizures will only be imposed if there is a fear that counterfeit medicines will reach the European market.

“Devil is in the Lack of Detail”

Martin said the workshop made him more knowledgeable but did not make his job easier or point him in a particular direction. “The devil is in the lack of detail,” he said.

The European Commission says ACTA is in line with EU law, yet more than one academic says it is broader, Martin said. The EC says the legislation does nothing to change EU IP infringement damages yet others think it could lead to tougher sanctions, he said. The EC says the concept of commercial-scale abuses is clear in European legislation but others claim it’s vague, he said. The EC contends ACTA has nothing to do with patents but it’s unclear how border agencies will be asked to define counterfeit medicines, he said. The EC says no additional burdens will be placed on internet service and hosting providers, yet it appears as though they will be made more responsible for ensuring internet users aren’t abusing IP law, he said.

Martin said at a 28 February press briefing that he welcomes the EC decision to send the treaty to the EU high court for review and that Parliament should do the same. He plans to issue an interim report either right before or after the summer, he said.

The ITRE committee held its first discussion on 28 February. Many members remained annoyed about the secrecy in which ACTA was negotiated, and concerned about its possible ramifications for digital rights and access to generic drugs. It is not clear yet whether all the talk this week changed any minds.