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Could Europe’s Anti-Counterfeiting Pact be a “Pandora’s Box” of Rights Violations?

Bari Bates

BRUSSELS, Mar 7 2012 (IPS) - Foggy details surrounding Europe’s anti-counterfeiting trade agreement (ACTA) have divided pubic opinion, with activists on one end of the spectrum claiming it to be the end of Internet freedom and the generic drug market, while proponents continue to defend the act as a “modest” agreement to protect Europe’s intellectual property.

Such polar opposite opinions shed light on the essential controversy surrounding the ACTA: the lack of detail in the text leaves broad room for interpretation.

The importance of protecting European Union intellectual property is acknowledged by a broad sector of civil society but whether or not the ACTA is the answer remains to be seen, especially given concerns over how the agreement was negotiated and how it will be enforced.

Currently, the draft text is in the hands of the European Court of Justice, which will rule whether or not the agreement aligns with the rights and freedoms ensured to EU citizens via various treaty standards.

Controversy over the ACTA has unfolded with much drama, including masked protestors taking to the streets in cities all across the continent, culminating in a week’s worth of meetings and forums at the European Parliament during the week of Feb. 27.

When the ACTA’s rapporteur, French parliament member Kader Arif, threw his support behind protestors in late January, it sent a very clear message about the ambiguity of the agreement.

Arif resigned with bold claims that he no longer wished to be part of the “masquerade” of the ACTA, adding that he had encountered political maneuvers designed to rush the agreement through without due consultation of civil society and limited transparency.

The legislation, he said, would not be effective in its intended purpose of tracking those who profit from counterfeiting, and instead open the door to a host of violations of individual freedoms.

Still, the legislation pushed on.

Karel De Gucht, the EU’s commissioner for trade, said turning the ACTA to the European Court of Justice was a necessary step in order to quell rumors and enter a period of informed debate over the agreement.

De Gucht stressed that the ACTA was designed to protect intellectual property, calling it Europe’s ‘main raw material’.

“The ACTA will change nothing about how we use the Internet and social websites today – since it does not introduce any new rules. The ACTA only helps to enforce what is already law today,” De Gucht said.

But a French citizen online advocacy group, La Quadrature du Net, insists De Gucht is lying to parliament members and downplaying ACTA’s far-reaching effects.

“By pretending that ACTA is inoffensive, Commissioner De Gucht is trying to hide the European Commission’s immense responsibility in initiating a negotiation process circumventing democratic arenas,” Philippe Aigrain, co-founder of La Quadrature du Net said.

Implications for generic drugs

Amnesty International is urging the EU to reject the ACTA, lamenting that it would infringe upon generic drug distribution by allowing officials to seize drugs with labels similar to trademarked brands.

Similar labels are used in order to communicate medical equivalence, according to Amnesty, and are an integral component in maintaining faith in the generic drug trade.

Scottish parliament member David Martin voiced his concern over the future of generic drugs as well. Though patents themselves are not included in the text, the ACTA leaves room for border patrols in any given country to mistake generic drugs for counterfeit drugs and seize them, which has happened in the past, Martin said.

De Gucht countered this argument by pointing to the very real threat of the distribution of counterfeit drugs; he said that more than 10 percent of generic drugs are counterfeited, placing people in acute danger of consuming drugs with harmful ingredients.

Widney Brown, the senior director of international law and policy at Amnesty International, called the ACTA a “Pandora’s box of potential human rights violations,” with additional mention of concerns over privacy, freedom of information, and freedom of expression.

Besides NGOs, active citizens have taken a firm stance against the ACTA. On Feb. 28, the European Parliament received a petition representing more than 2.4 million people opposed to the agreement.

Sponsored by Avaaz, an online organisation that works to connect civil society with the political decision-making process, the petition called for Parliament to reject ratification of the ACTA, effectively killing the agreement.

“This is not 1984”

In an address to the European Parliament’s committee for international trade, De Gucht stressed that much of the opposition to the ACTA was unfounded, based on false assumptions about the ACTA and an exaggeration of its harmful effects.

“This is not 1984; this is 2012. The ACTA is not about ‘Big Brother’, it is about solving our economic problems in 2012 and beyond. And in 2012 we have real economic problems that we must take action to solve. The ACTA is part of the solution,” De Gucht said.

But the agreement’s current rapporteur isn’t ready to express similar support. Martin, who calls himself the “accidental” rapporteur, appointed after Arif’s resignation, has labeled himself the ideal man for the job, as his indecision over the agreement allows him to view the whole situation with clarity.

Shadow rapporteur Christofer Fjellner also has hesitations about the public’s response to the ACTA, saying that at least “50 percent” of protests against the ACTA are “myths” while the other 50 percent are legitimate concerns worth examining.

Fjellner pointed specifically to a commonly held fear of unwarranted searches of personal devices, such as computers and MP3 players, which he refuted as “ungrounded”.

Though the Avaaz petition labeled the ACTA the “new threat to the net,” the agreement has actually been on the table since 2007.

Formal negotiations were launched in June 2008, and went through eleven rounds of negotiations before being finalised in November 2010. The EU and 22 member states signed the ACTA on Jan. 26 in Tokyo; but in order to take effect the agreement must be universally ratified by all member states and approved by Parliament.

So far, Germany, the Netherlands, Estonia, Slovakia, and Cyprus have withheld their support.

Countries that have pledged support for the ACTA include the United States, Canada, South Korea, Japan, Australia, New Zealand, and Singapore.

Michael Geist, a law professor at the University of Ottawa, spoke at an ACTA workshop on Mar. 1, where he argued that open discussions about the ACTA should have taken place years ago, at the conception of the agreement, instead of at a juncture where Parliament only has the power to approve or reject it altogether.

Uncertainties have been enough to halt the decision making process for now. Neither the European Court of Justice nor the European Parliament has been given a deadline, and the process could be stalled for a year or more.

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