The negotiations of the Anti Counterfeiting Trade Agreement (ACTA) and its risks for Africa

The European Union has been negotiating an Anti Counterfeiting Trade Agreement (ACTA) with Australia, Canada, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States since 2007. ACTA was conceived as a pluri-lateral agreement that would be created outside of multilateral institutions such as the World Intellectual Property Organization (WIPO) or the World Trade Organization (WTO), where international Intellectual Property (IP) norm-setting takes place. Seven rounds of negotiation have taken place so far and an eighth is foreseen inNew Zealandin April. The Commission's wish is to conclude the negotiations by the end of 2010. Business lobbies inEuropeare strongly supporting the ACTA negotiations.


ACTA is being negotiated with unprecedented secrecy and in a manner seemingly designed to evade public review. The negotiating parties have jointly agreed on a confidentiality clause to keep negotiations secret. All the European Commission has provided civil society with are generic briefs which do not allow for a detailed assessment of the implications of the agreement. The purpose of the agreement is to establish international standards on intellectual property rights enforcement throughout the participating countries.Africahas no place at the negotiating table and the agreement is directly applicable only to those countries signing it. At first glance, therefore, there might appear to be no reason to discuss ACTA here. However, if ACTA becomes a reality, it risks having far-reaching and dramatic consequences forAfricaas well. This article intends to flash a warning about the potential dangers of ACTA.


The content of ACTA


As mentioned before, the details of the ACTA negotiations are held confidentially. According to the briefings made public by the Commission the following aspects will be covered.


International Cooperation among the parties including sharing of information and cooperation between our law enforcement authorities, e.g. Customs and other relevant agencies.


Enforcement Practices that promote strong intellectual property protection in coordination with right holders and trading partners. Such "best practices" should support the application of the relevant legal tools. Areas for possible provisions include formal or informal public/private advisory groups; fostering of specialized intellectual property expertise within law enforcement structures to ensure effective handling of Intellectual Property Rights (IPR) cases.


A legal framework that allows law enforcement agencies, the judiciary, and private citizens effectively to bring counterfeiters and pirates to justice. Areas for possible provisions include: border measures, civil enforcement, criminal enforcement.


The European Union as well as the other negotiating parties are unfortunately not willing to let the broader public know how all this will be regulated in detail in the agreement and how it should play out in practice.


Africa and ACTA


The Commission's official position on countries which are not part of the agreement is that countries which are not part of the negotiations and who will not sign the agreement will of course not be bound by the agreement. ACTA is not intended to isolate countries or point the finger at their enforcement efforts. The countries involved in this initiative share a particular vision of a path to stronger enforcement to deal with the challenges of piracy and counterfeiting today.[1]


As mentioned before, Africais not directly bound to accept the measures coming out of ACTA but is likely to feel its impact as well. The EU is currently pursuing an aggressive agenda for the inclusion of stringent IPR measures in the trade agreements it is negotiating with third parties, including the Economic Partnership Agreement (EPA) negotiations it is conducting with Africa. This push for the inclusion of IPR norms is an integral part of the EU's Global Europe[2] strategy. An article recently published by the Yale Journal of International Law Online warned that although not participating in negotiations, developing country governments will nevertheless find their domestic policy space reduced by ACTA as ACTA standards are likely to be a requirement of future bilateral agreements.[3] ForAfrica this would mean, inter alia, greater difficulty or impossibility to access life-saving medicines and increasing difficulty in accessing technology which is vital for the economic development.


According to the Commission, ACTA will respect the Declaration on TRIPS agreement and Public Health[4], but it impossible for independent sources to verify this. The enforcement measures foreseen in ACTA could lead to the customs authorities blocking the transport of generic medicines toAfrica. OXFAM expressed its concern that ACTA could do great harm in developing countries and undermine the balance between the protection of intellectual property and the need to guarantee affordable medicines to everybody.


The EU is already engaging in worrisome activities in the field of access to medicines. It is funding the drafting ofUganda’s controversial Counterfeit Goods Bill, a proposed law that threatens access to life-saving generic medicines in this low income East African country. Some 90 percent of medicines used inUganda’s health-care system are imported, of which about 93 percent are generics.


Harvey Rouse, head of the political and trade section of the EU delegation to Uganda, confirmed that part of the five million Euros financing agreement entered into with Ugandain July 2009 involves developing an anti-counterfeits law. The law defines counterfeiting so broadly as to criminalise the production and importation of generic medicines, thereby placing affordable and legitimate medicines outside the reach of millions of people in a country struggling with HIV, AIDS and malaria. The Ugandan law, like the recently adopted Kenyan law and the pending East African Community law, makes no distinction between legal generic medication and counterfeits.[5]


Another risk is that ACTA impedes Africans’ access to technology which they could then develop and adapt to their own needs. An increase in IP norms risks strangulating creativity and innovation which are at the foundation of the development of poorer countries. As Nobel laureate Joseph Stiglitz has already warned, what developing countries need to evolve economically are less stringent IPRs, not even tougher IP measures.[6] It is therefore of paramount importance to follow the developments of the ACTA negotiations carefully and to exercise pressure on the European Commission to make the actual negotiation texts publicly available.


The European Parliament and ACTA


The good news is that the European Parliament is also unhappy about the way the ACTA negotiations are being conducted. It has received only a limited amount of information on the ACTA negotiations from the European Commission and has not been shown the draft negotiating text either. However, under the Lisbon Treaty, which came into force in December 2009, the Parliament has the right to be fully informed at each stage of the negotiations and once negotiations are concluded ACTA will have to be approved by the European Parliament in order to become law.


A hearing of the Commission in front of the Trade Committee of the Parliament in February 2010 did not satisfy the Parliamentarians who held a plenary debate on the subject in March and approved with a large majority a resolution stating that the Parliament expresses its concern over the lack of a transparent process in the conduct of the ACTA negotiations, a state of affairs at odds with the letter and spirit of the TFEU; is deeply concerned that no legal base was established before the start of the ACTA negotiations and that parliamentary approval for the negotiating mandate was not sought. 


The resolution calls on the Commission and the Council to grant public and parliamentary access to ACTA negotiation texts and summaries and to engage proactively with ACTA negotiation partners to rule out any further negotiations which are confidential as a matter of course. In this sense the resolution expects the Commission to make proposals prior to the next negotiation round inNew Zealandin April 2010, to demand that the issue of transparency is put on the agenda of that meeting and to refer the outcome of the negotiation round to Parliament immediately following its conclusion.


Moreover, the resolution deplores the calculated choice of the parties not to negotiate through well-established international bodies, such as WIPO and WTO which have established frameworks for public information and consultation.


The resolution goes so far as to threaten legal action by affirming that unless Parliament is immediately and fully informed at all stages of the negotiations, it reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives.[7]


Thomas Lazzeri

[1] European Commission, 2008, ACTA Factsheet

[2] The Global Europe strategy is a European Commission document which sets out the trade policy agenda designed to reflect the EU's strategic priorities.

[3] E. Katz and G. Hinze, 2009, 'The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy: The Accountability of the Office of the U.S. Trade Representative for the Creation of IP Enforcement Norms Through Executive Trade Agreements', in  The Yale Journal of International Law Online, vol. 35.

[4] The declaration on TRIPS agreement and Public Health is a WTO declaration which affirms that rules on IP should be interpreted in a flexible way in order to guarantee the right to protect public health and explicitly recognizes the gravity of the public health problems afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics.

[5] IPS, 2010,Uganda: EU supports law threatening access to medicines.

[6] Stiglitz, J., 2006, Making Globalization Work, W. W. Norton

[7] Joint Resolution RC7-0154/2010 European Parliament resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations


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