The
European Union’s highest court has been asked to asses the legality of ACTA,
the Anti-Counterfeiting Trade Agreement, an international agreement which
could, if ratified, have a serious impact on the Indian healthcare system
through the restriction of generic drugs.
Says the BBC of the referral to the European
Court of Justice:
The European Commission said it “decided today
to ask the European Court of Justice for a legal opinion to clarify that the
Acta agreement and its implementation must be fully compatible with freedom of
expression and freedom of the internet”.
ACTA aims to establish international
intellectual property standards, focusing particularly on counterfeit goods,
generic medicines and copyright infringement. Europe, the United States, Japan,
Australia, New Zealand, Singapore, South Korea, and Canada are amongst the
countries in negotiation. EU trade head Karel De Gucht said at a press
conference:
“[Acta] aims to raise global standards for
intellectual property rights, will help protect jobs currently lost because
counterfeited, pirated goods worth 200bn euros are currently floating around.”
But Viviane Reding, the EU commissioner for
justice, fundamental rights and citizenship, said in a statementexplaining the
ECJ referral:
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.
Protests across Europe have highlighted
problems with the agreement which could stifle free speech on the internet. For
example, ACTA asks internet providers to withdraw internet access from users
who illegally download copyrighted material. It also removes safeguards which
protect ISPs from liability for the actions of their subscribers. But, says
Wired:
[I]t’s often unclear how Acta’s requirements
would be implemented, or could be implemented without creating a technical architecture
online that restricts speech. For instance, Acta’s harsh DMCA-like provisions
against anti-circumvention could effectively render some free software, which
by its nature can’t support DRM, illegal in the Western world.
Furthermore, ACTA treats generic drugs just
like counterfeit drugs. French MEP Kader Arif, who resigned from his position
leading the ACTA negotiations because of flaws in the agreement, told The
Guardian:
“The problem with Acta is that, by focusing on
the fight against violation of intellectual property rights in general, it
treats a generic drug just as a counterfeited drug. This means the patent
holder can stop the shipping of the drugs to a developing country, seize the
cargo and even order the destruction of the drugs as a preventive measure.”
India, for example, cannot afford to only buy
brand drugs and often relies on cheaper generics which are similar to branded
drugs or based on drug patents that have expired. ACTA would restrict the
treatment of diseases like HIV, for which the brand drugs are extremely
expensive, limiting India’s ability to make its own healthcare decisions.
Protests haven’t been restricted to activists, academics and non-profits. In
January, Polish politicians protested ACTA by covering their faces with Guy
Fawkes masks during parliamentary proceedings. Poland abandoned plans to ratify
the agreement and Prime Minister Donald Tusk said that earlier support had been
a “mistake”. Germany also stopped its ratification process, as have the
Netherlands, Slovakia, Slovenia and others. The Lithuanian Minister of Justice
Remigijus Šimašius criticised ACTA, calling for a deeper assessment of
intellectual property frameworks. Even the EU President, Martin Schulz,
criticised the treaty saying that “I don’t find it good in its current form.”
With opposition at the highest levels of European government, as well as at a
national level can ACTA go forward? For the treaty to become law it must have
the support of all 27 EU national parliaments. It may be that this referral to
the ECJ is simply a delaying tactic. Says the FT:
“Faced with rejection, the Commission decided
to kick the ball into the long grass, and hope that the climate improves when
Acta resurfaces next year,” said one national diplomat involved in negotiating
the treaty. “It was either that or it really risked being scrapped for good.
Now at least it is on life support.”
Even if the ECJ rules in ACTA’s favour, it
seems unlikely that Poland, Germany and other countries will reverse their
position, which will make it impossible for the EU to adopt the treaty. But
ACTA isn’t the only treaty under discussion. The US is also pursuing the
Trans-Pacific Partnership (TPP), an free trade agreement between the US and
Asia-Pacific that would cover some of the same ground as ACTA. Negotiated in
secrecy, as ACTA was, leaked documents show that TPP could also “severely
restrict access to essential medicines for millions of people in developing
countries” by restricting generic drugs. Activists are trying to get the US government
to release a draft of TPP, so far with no success. It might seem like a tiring
game of whack-a-law, but if we want a free internet, we have to actively
protect it. And, for as long as Hollywood and the rest of the content industry
sees the internet as a threat rather than an opportunity, these laws and
treaties will continue to pop up. It may feel like a long, boring fight, but
the internet is a battleground we can’t afford to cede.
Suw Charman-Anderson
Firstpost,com
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