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ACTA opposed by parties representing majority of MEPs

Parties representing a majority of Members of the European Parliament (MEPs) do not support the approval of the Anti-Counterfeiting Trade Agreement (ACTA) after liberals added their opposition to the controversial treaty, an MEP has said.30 Apr 2012

Christian Engstrom, who represents the Pirate Party in the Parliament, said that the decision by the Alliance of Liberals and Democrats (ALDE) to oppose ACTA meant there is now a notional "majority" within the Parliament opposed to the treaty. He said ALDE, the Greens, Social Democrats and the Europe of Freedom & Democracy Group are all against ACTA and that these groups contain more MEPs than the more conservative groups.

However, Rick Falkvinge, founder of Sweden's Pirate Party, said that MEPs are given more licence to vote independently from the views of their party than in other parliaments.

"Deviations from the declared party line is not only common but expected in pretty much every vote," Falkvinge said in his blog. "So even though the party groups have declared their party lines, this has no effective binding force on the people doing the actual button-pressing, and it’s the tally of them that counts in the end."

ACTA 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.

ALDE said the ACTA "does not strike the right balance" between the protection of IP rights (IPR) and "fundamental rights and freedoms".

"We remain supportive of multilateral efforts to protecting intellectual property rights but ones based on a sectoral approach and a transparent and publicly discussed mandate," ALDE said in a statement. "Civil society has been extremely vocal in recent months in raising their legitimate concerns on the ACTA agreement which we share. There are too many provisions lacking clarity and certainty as to the way they would be implemented in practice."

"Furthermore, ACTA wrongly bundles together too many different types of IPR enforcement under the same umbrella, treating physical goods and digital services in the same way. We believe they should be approached in separate sectoral agreements, and following a comprehensive and democratically debated mandate and impact assessment. Finally, the countries that are the main sources of counterfeit goods are not party to the agreement, so its value is questionable."

In January the UK, along with 21 other EU member countries, signed up to ACTA at a ceremony in Japan. Australia, Canada, Japan, South Korea, Morocco, New Zealand, Singapore and the US signed ACTA in October last year.

However, in February 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. A number of EU ACTA signatories, including Poland and the Czech Republic, have expressed concern with the proposed text and have suspended their "ratification" of it. The signatory countries and the European Parliament must approve the text before it can come into effect.

Other concerns have been raised  about the secrecy in which ACTA was negotiated, with a rapporteur on the text at the European Parliament previously resigning in protest over the ACTA signing process - something he referred to as a "charade".

Earlier this month the EU's own privacy watchdog – the European Data Protection Supervisor (EDPS) – said that ACTA does not provide adequate data protection and privacy safeguards for individuals. The wording of the ACTA text is not sufficiently detailed to guarantee that individuals' rights would not be breached in any enforcement against suspected online copyright infringers, the EDPS' opinion said.

ACTA implies that rights holders will in some form monitor use of the internet to identify alleged infringements of their rights by individuals in order to seek an injunction against individuals. Such activity would amount to processing of "sensitive data" because it would relate to suspected offenders, it said. Widespread monitoring by rights holders would be neither necessary nor proportionate and would not be justified, the watchdog said.

The European Commission has already asked the European Court of Justice (ECJ) to review whether ACTA is compatible with the guardian principles and rights behind EU law. EU Trade Commissioner Karel De Gucht has urged the Parliament to wait for the ECJ to issue its verdict on the lawfulness of ACTA before determining whether to approve it or not.

The European People's Party (EPP) group at the European Parliament, which represents the majority of centre-right MEPs, said that "legal clarity" was needed before it could support ACTA. However, it said that changes to the text would "fix" the problem and help resolve the underlying problems that ACTA was created in order to solve.

ACTA should not compel internet service providers (ISPs) to "automatically police the web", EPP said.

"The EPP Group does not want Internet Service Providers to police the web in an inappropriate way and considers this as contrary to EU data protection law," it said. "We therefore ask the Commission and the Council [of Ministers] to ensure legal clarity on the role of ISPs under ACTA."

EPP has also asked that clarity be provided on when the enforcement of IPR would take place under the terms of ACTA.

"ACTA only targets large-scale infringement of intellectual property rights, allowing for signatory states to exempt non-commercial use from its criminal enforcement procedures," it said. "However, it is unclear where to draw the line."

"The EPP Group does not want to criminalize individual users. We therefore ask the Commission and member states to define the notion of infringement of intellectual property rights on a commercial scale and to add legal clarity as to when Member states could impose criminal enforcement measures on internet users."

Despite identifying problems with ACTA, EPP said an "international agreement" to tackle counterfeiting was necessary.

"In the interest of European consumers, businesses, as well as Internet users, we need to put an end to the hysteria surrounding ACTA and make real progress on the key challenges ahead: stop dangerous counterfeit products from entering our market, safeguard intellectual property on which our economy thrives, and continuing to preserve the freedom on the Internet," the group said.

"Just voting against ACTA would solve possible problems of ACTA but it would not solve those problems why ACTA was invented, such as the need to fight against large-scale infringements of IPR, trademarks etc. The answer is not to vote against ACTA but call on Commission and Member states to fix the problematic issues and to get an agreement which is a step forward without creating new problems," it said.

ACTA is being scrutinised by a number of committees at the European Parliament as part of the process for approving or rejecting the treaty.

A draft opinion urging the rejection of ACTA has been formed on behalf of the Parliament's Industry, Research and Energy Committee (IREC). The draft advises the International Trade Committee (ITC) not to recommend ACTA to MEPs. The ITC is primarily responsible for scrutinising ACTA at the Parliament and is tasked with recommending whether MEPs should accept or reject the text. A final vote by MEPs is expected by June.