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Commission asks ECJ to rule on ACTA compatibility

Out-Law News | 23 Feb 2012 | 1:59 pm | 3 min. read

The European Commission is to ask the European Court of Justice (ECJ) to rule whether a controversial international anti-piracy agreement is compatible with "fundamental EU rights and freedoms".

The EU's Trade Commissioner, Karel De Gucht, said an ECJ ruling on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with those rights was "needed" in order to dispel "misinformation or rumour" that has been spread about the agreement since 22 EU countries signed up to the pact earlier this year.

"Let's cut through this fog of uncertainty and put ACTA in the spotlight of our highest independent judicial authority: the European Court of Justice," De Gucht said in a statement.

"This clarity should help support a calm, reasoned, open and democratic discussion on ACTA - whether at the national or at the European level. We will also be in contact with the other European institutions to explain this step and why it would make sense that they make the same move," he said.

In January the UK, along with 21 other EU member countries, signed up to ACTA at a ceremony in Japan. Subsequently, however, a number of the EU signatories, including Poland and the Czech Republic, have expressed concern with the proposed text and have suspended their "ratification" of it. The European Parliament and the individual Governments must approve ACTA before it can come into effect.

Earlier this month thousands of people took to the streets of cities across Europe to protest against the impact they believe ACTA would have on their internet freedoms. Other concerns have been raised about the secrecy in which ACTA was negotiated, with a rapporteur on the text at the European Parliament resigning in protest over the ACTA signing process - something he referred to as a "charade".

ACTA (52-page / 173KB PDF) requires member countries to have in place "enforcement procedures" under national laws that allow for "effective" action to be taken against intellectual property (IP) infringers that is both "expeditious" and a suitable "deterrent to further infringements".

Member countries of ACTA must ensure that IP that exists in "the digital environment" can also be enforced through civil and criminal legal procedures. Enforcement must be done "in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and ... preserves fundamental principles such as freedom of expression, fair process, and privacy".

ACTA also includes further requirements signatories must adopt relating to the systems they operate at customs and border control to combat infringement as well as statutory provisions that give courts certain powers to act against offenders in both criminal and civil proceedings.

The "effective enforcement" of IP rights is "critical to sustaining economic growth across all industries and globally," the ACTA text states.

Karel De Gucht said that he shared people's concerns over the freedom of the internet but said the text would not create new laws in the EU that would impinge on that.

"ACTA is an agreement that aims to raise global standards of enforcement of intellectual property rights. These very standards are already enshrined in European law. What counts for us is getting other countries to adopt them so that European companies can defend themselves against blatant rip-offs of their products and works when they do business around the world. This means that ACTA will not change anything in the European Union, but will matter for the European Union," he said.

"ACTA will change nothing about how we use the internet and social websites today – since it does not introduce any new rules. ACTA only helps to enforce what is already law today.  ACTA will not censor websites or shut them down; ACTA will not hinder freedom of the internet or freedom of speech," the Commissioner said.

De Gucht said that the EU currently suffers from being unable to properly protect intellectual property outside of the trading bloc and that this "hurts our companies, destroys jobs and harms our economies". He said ACTA would help stop the loss of jobs currently suffered through the abundance of counterfeit and pirated goods around the world.

Australia, Canada, Japan, South Korea, Morocco, New Zealand, Singapore and the US signed ACTA in October last year.

In a separate statement EU Justice Commissioner Viviane Reding said that ACTA "must not" allow individuals' internet access to be cut off in order to protect copyright "without a prior fair and impartial procedure or without effective and timely judicial review".

"Copyright protection can never be a justification for eliminating freedom of expression or freedom of information. That is why for me, blocking the internet is never an option. Instead, we need to find new, more modern and more effective ways in Europe to protect artistic creations that take account of technological developments and the freedoms of the Internet. The promotion of legal offers, including across borders, should become a priority for policy-makers," she said.

The ECJ has recently ruled on the balance of EU fundamental rights and laws in relation to anti-piracy measures.

In assessing whether social networks should have to monitor users' activity in order to identify and prevent illegal file-sharing the ECJ weighed up the fundamental rights to the protection of intellectual property against the rights to privacy, free speech, the freedom to conduct business, and protection of personal data. All are rights listed under the EU Charter of Fundamental Rights.

In its ruling it said that, on balance, it would be unfair if courts could force social networks to monitor for copyright infringement. The ECJ had come to the same conclusion in an earlier case related to whether internet service providers should have to monitor customers' activity for evidence of illegal file-sharing.