18 October 2017 Register to receive our free newsletter by email each week
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European blow to anti-counterfeiting trade agreement

Rejection by the European parliament on Wednesday night of an international treaty that attempted to strengthen the enforcement of intellectual property rights could impact on the debate in other countries.

This is according to Professor Christoph Antons, a chief investigator with the Australian Research Council centre of excellence for creative industries and innovation.

Antons is an expert on international intellectual property law at Deakin University in Melbourne. He said the rejection by Europe would make it harder to reach international agreement on intellectual property rights and would also send a negative message to developing countries asked to strengthen their intellectual property enforcement systems.

“Intellectual property or IP covers matters relating to fields such as copyright, trademarks, patents, industrial design or confidential information,” he said. “These countries could say, ‘If consumers in European high-tech economies do not accept these measures, why should we?’

“This would be a major setback because one of the aims of the anti-counterfeiting trade agreement is to establish new international enforcement standards that could be recommended for adoption in other countries.”

Antons said six countries needed to ratify the agreement and the focus would now shift to the ratification discussion in the remaining eight countries that have signed the agreement. It was likely that the European rejection and the reasons for it would be the subject of discussions in countries such as Canada, the United States, New Zealand and Australia.

“The agreement seeks to establish higher standards in civil and criminal enforcement as well as border measures and enforcement of IP rights in the digital environment – compared with the WTO Agreement on Trade Related Intellectual Property Rights (TRIPS) that currently regulates most of these issues at the international level.

“Critics of the agreement were concerned about the ambiguity of terms and the potential impact on third parties. They argued there was a lack of balance in the treaty and that it favoured rights holders, for example by allowing them substantial input to determine the amount of damages to be paid by infringers.”

Antons said the higher standards had provoked strong reactions and protests, particularly in the internet community which was concerned about the possible impact on internet privacy and internet service providers.

“The tenor of the protests was not generally against intellectual property rights but against the way they are currently being applied, with many protesters arguing that the balance in the system has been lost,” he said.

“For example, some of the Pirate Parties established in various countries, including Australia, advocate strong reductions in the length of copyright protection, a reform of the patent system and the exclusion of certain subject matter from patentability.

“They have been quite successful in recent state elections in Germany and are now represented in parliament in four German states.”

Antons said the debates in Europe were having some influence on those in Australia. Last week, the House of Representatives’ joint standing committee on treaties recommended further clarifications of terms of the agreement and that it should not be ratified until an assessment was made of the economic and social benefits and costs for Australia.

“The committee also wanted a report from the Australian Law Reform Commission, which is inquiring into copyright and the digital economy. It further recommended that Australia should have regard to events relating to ACTA in other jurisdictions, such as the European Union and the US.

“And it noted the international reaction ‘without exception’ comes from countries the committee considers would have the same interests as Australia.”
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