PublishedNovember 24, 2010

The State of Play On ACTA in the EU

On 15th November the parties negotiating the Anti-Counterfeiting Trade Agreement (Australia, Canada, EU, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the U.S.) published the finalized version of the agreement. At the end of November, a so-called technical meeting to finalize the legal wording will take place in Sydney.

Today, as a step to clear the way for a final adoption of ACTA, the European Parliament adopted a non-legislative Resolution on ACTA. The majority of the House, composed of the European People’s Party (EPP) and the European Conservatives and Reformists (ECR), voted against an alternative proposal jointly drafted by the Social Democrats (S&D), Liberals (ALDE), Greens, and the United Left/Nordic Green Left (GUE/NGL).

The importance of this Resolution derives from the fact that after the entry into force of the Lisbon Treaty, parliamentary consent is required in the case of international agreements. This is different from the U.S. as ACTA would not be offered Senate for approval – unless it is found to significantly change U.S. law.

After today’s vote in the European Parliament, the way for the adoption of the agreement in the EU looks very likely, a fact that was critically influenced by the easing of some of ACTA’s highly controversial provisions – including some that would have been harmful to privacy and innovation.

Even so, today’s Resolution asks for the Commission’s assurance that the enforcement of ACTA will not result in the introduction of the ‘three strikes’ procedure or personal searches. In this context, the Commission has repeatedly stated that ACTA is in full line with the aquis communautaire, the full body of Europena Union law — although this is questioned by some key players in Brussels.

In this line of reasoning, the European Parliament sent out a clear message to the Commission asking for solid confirmation that ACTA’s implementation will have no impact on fundamental rights and data protection, as well as on the EU’s ongoing efforts to harmonize IPR enforcement measures, or on e-commerce.

One controversial provision that was ultimately removed was language that would have created broad, “third party” liability. ISPs, and other legitimate businesses not engaged in piracy, would have been held liable for actions of Internet users. Creating broad new categories of liability for legitimate businesses was never an appropriate subject for an IP enforcement agreement and would have likely held ACTA up amid greater legal debates. The decision to remove ISP liability will help maintain and promote growth in Internet commerce.

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