The Acta Agreement Under the Guarantees of the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union and the German Basic Law

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A.INTRODUCTION

We live in the Digital Age and in a fully globalized world in which intellectual property rights (IP rights) are no longer configured in the same way they did before. That is why the Anti-Counterfeiting Trade Agreement was designed in order to respond to new technological and human challenges. But when ACTA was revealed to the public opinion an intense debate emerged from the first moment and almost immediately civil and Internet organizations totally opposed to the content of ACTA alleging that the agreement was a serious violation of fundamental rights. On the other side, the signatory states, the right holders of those IP rights and the European Union, defended Intellectual Property as an engine of economic growth, job creation and encouragement of innovation and artistic and technological creation. The purpose of this seminar paper is to explain which provisions of ACTA hinder fundamental rights as enshrined in the different European catalogues of human rights, namely the German Basic Law, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. But the scope of ACTA is much wider, it covers topics such as generics medicines, innovation and competition, which are not objective of this paper and therefore they will not be analyzed. In order to understand which violations are perpetrated by ACTA, this paper is divided in four parts. In the first one I will explain what is the Agreement and how was negotiated. We will see that is a matter of great topicality since the final vote at the European Parliament is about to take place, specifically in a month. Second, I will explain how those catalogues of fundamental rights relate to each other. In other words, how a multilevel of protection of fundamental rights affect the guarantees protected by those rights. Third, I will analyse which provisions of ACTA do not respect European fundamental rights. Finally, I will draft some conclusions.

B.THE ANTI-COUNTERFEITING TRADE AGREEMENT

I.WHAT IS ACTA

The Anti-Counterfeiting Trade Agreement (ACTA) is a multilateral agreement which its main objective is to establish a harmonized standard for the enforcement of intellectual property rights in order to combat the violation of protected rights all around the world. In order to fulfill this task, the agreement contains provisions on international cooperation between States and the coordination of law enforcement, especially the introduction of civil and criminal sanctions for intellectual property infringements , such as counterfeit goods, generic medicaments and copyright infringements on the internet. The countries involved in the Agreement are the United States, Japan, Canada, the European Union (with its 27 Member States), Switzerland, Australia, Mexico, Morocco, New Zealand, South Korea and Singapore, making a total of 11 contracting parties. Since ACTA is an international agreement that bounds only the contracting parties, it is a method of creation of a new international law. According to the EU Commission “ACTA will help countries work together to tackle more effectively Intellectual Property Rights (IPRs) infringements” . So the interest of the EU to sign this agreement resides in the concern of remaining at a relevant position in the global economy and by this way being able to protect the jobs related to intellectual property all around the European Union. The Agreement is divided in Chapter I for Initial provisions and general definitions; Chapter II for the Legal framework of enforcement of Intellectual Property Rights (and subdivided in Section 1: General Obligations with Respect to Enforcement, Section 2: Civil Enforcement, Section 3: Border Measures, Section 4: Criminal Enforcement and Section 5: Enforcement of Intellectual Property Rights in the Digital Environment); Chapter III for Enforcement practices; Chapter IV for International cooperation; Chapter V for Institutional arrangements...
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