[governance] Acta goes too far, says MEP

[Riaz K Tayob]

  Acta goes too far, says MEP

Kader Arif, the lead Acta negotiator in the European Parliament, says 
Acta potentially cuts access to lifesaving generic drugs and restricts 
online freedom

  *
    Charles Arthur <http://www.guardian.co.uk/profile/charlesarthur>
  * guardian.co.uk <http://www.guardian.co.uk/>, Wednesday 1 February
    2012 14.39 GMT
  * Article history
    <http://www.guardian.co.uk/technology/2012/feb/01/acta-goes-too-far-kader-arif?newsfeed=true#history-link-box>


Kader Arif
French MEP Kader Arif says Acta threatens online freedom and access to 
the use of generic versions of drugs for treating illnesses. Photograph: 
Lionel Bonaventure/AFP

The French MEP who resigned his position in charge of negotiating the 
international Anti-Counterfeiting Trade Agreement (Acta) has said it 
"goes too far" by potentially cutting access to lifesaving generic drugs 
and restricting internet <http://www.guardian.co.uk/technology/internet> 
freedom.

In an exclusive interview with the Guardian, Kader Arif -- a member of 
the European parliament's international trade group, who was the lead 
negotiator over Acta -- said that despite talks over the agreement 
having begun in 2007, "the European parliament, which represents the 
rights of the people, had no access to this mandate, neither had it 
information of the position defended by the commission or the demands of 
the other parties to the agreement".

Arif resigned in protest on 26 January as the EU signed the treaty, 
saying that he wished to "denounce in the strongest manner the process 
that led to the signing of this agreement: no association of civil 
society [and] lack of transparency from the beginning".

He said that it now threatens online freedom, access to the use of 
generic versions of drugs for treating illnesses, and could potentially 
mean that someone crossing a border who has a single song or film on 
their computer could face criminal charges.

Asked what he thought European citizens should do, Mr Arif said: 
"Showing that there is interest and concern about this agreement is the 
best way of creating a real public debate, which was never possible 
until now because of the lack of transparency on this dossier. 
Especially if the timeframe is short, raising awareness of members of 
parliament will be crucial. And because Acta is a mixed agreement, it 
will have to be ratified both by the European parliament and by every 
member state of the union, so there is also an opportunity to organise 
debates at the national level."

He says that it is now impossible to renegotiate the agreement because 
the 11 key parties to it concluded their discussions on 1 October 2011: 
"the European commission negotiated it on behalf of the EU, on the basis 
of a mandate given by the member states in 2007."

That means, he says, that "at this stage one can only accept or reject 
the agreement -- no change of the text is possible. If the right wing of 
the European parliament had not imposed such a tight calendar, the 
members of the European parliament could have drafted an interim report, 
which would have put conditionalities to the ratification of the 
agreement, by giving recommendations to the commission and member states 
on how to implement it. But this is no longer a feasible option."

"The title of this agreement is misleading, because it's not only about 
counterfeiting, it's about the violation of intellectual property 
<http://www.guardian.co.uk/law/intellectual-property> rights," he told 
the Guardian. "There is a major difference between these two concepts."

Acta has triggered public protests in a number of European and other 
countries 
<http://www.guardian.co.uk/technology/2012/jan/27/acta-protests-eu-states-sign-treaty>, 
as well as online attacks by the hacking collective Anonymous. The US, 
EU member states, Australia, New Zealand, Canada, Japan and a number of 
other countries have signed it, although none has yet ratified it in 
national legislation.

The agreement would create an international framework and set of 
standards for a voluntary legal regime to enforce intellectual property 
rights across national boundaries.

Arif said one example illustrates this difference particularly well -- 
the case of generic medicines. "Generic medicines are not counterfeited 
medicines; they are not the fake version of a drug; they are a generic 
version of a drug, produced either because the patent on the original 
drug has expired, or because a country has to put in place public health 
policies," he said.

A number of countries such as India and African nations have sought to 
use generic versions of drugs for infections such as HIV, which has 
often been resisted by pharmaceutical companies. Under Acta, Arif fears 
such countries would not have the same freedom to determine their own 
actions.

"There are international agreements, such as the Trips agreement 
<http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm>, which 
foresees this last possibility," he said. "They're particularly 
important for developing countries which cannot afford to pay for 
patented HIV drugs, for example.

"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."

He thinks that is a key flaw: "Acta also limits the flexibilities listed 
in the Trips agreements to support developing countries in need of 
generic drugs. When the question of finding the right equilibrium 
between protection of intellectual property rights and protection of 
final users is so crucial, Acta appears to be very unbalanced in favour 
of patent holders. This is one of the major problems with the agreement."

Internet freedoms could also be under threat if Acta is ratified in its 
present form, he says. "The chapter on internet is particularly worrying 
as some experts consider it reintroduces the concept of liability of 
internet providers, which is clearly excluded in the European 
legislation." That could make ISPs, who provide internet access, liable 
for users' illicit file-sharing.

Arif also expressed concern that there could be more intrusive checks at 
borders to fight counterfeiting.

"I see a great risk concerning checks at borders, and the agreement 
foresees criminal sanctions against people using counterfeited products 
as a commercial activity," he said.

"This is relevant for the trade of fake shoes or bags for example, but 
what about data downloaded from the internet? If a customs officer 
considers that you may set up a commercial activity just by having one 
movie or one song on your computer, which is true in theory, you could 
face criminal sanctions.

"I don't want people to have their laptops or MP3 players searched at 
borders, there needs to be a clearer distinction between normal citizens 
and counterfeiters which trade fake products as a commercial activity. 
Acta goes too far."

The text of the finalised treaty (PDF) 
<http://www.mofa.go.jp/policy/economy/i_property/pdfs/acta1105_en.pdf> 
has now been made public, and the European commission has begun to try 
to explain how Acta would work. It has also published a document called 
10 Myths about Acta 
<http://trade.ec.europa.eu/doclib/docs/2012/january/tradoc_148964.pdf>, 
asserting that the public was informed "since the launch of the 
negotiations"; that it is drafted "in very flexible terms" and that 
"safeguards and exceptions under EU law or under the Trips agreement 
remain fully preserved".

It also insists that "Acta is about tackling large-scale illegal 
activity ... there is a provision on Acta specifically exempting 
travellers from checks if the infringing goods are of a non-commercial 
nature and not part of large-scale trafficking".

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