Chapter 8 Conclusion
Current status of ACTA
Growing public awareness of ACTA amongst the nations involved in the
negotiations has resulted in an increased level of disquiet about its potential
impact. These public concerns
have prompted a number of countries which were originally signatories to the
Agreement, to indicate they will either postpone ratification or not ratify
ACTA at all.
The focus of opposition to ACTA at present is the European Parliament. The
European Parliament deals with international treaties by referring them to a
relevant committee to prepare a recommendation. Recommendations are then
presented to a plenary of the Parliament for a final decision.
ACTA stands referred to that Parliament’s Committee on International Trade for
a recommendation. The process of consideration by that Committee is nearly
complete, and the Committee’s Rapporteur, Mr David Martin, prepared a draft
Recommendation that was intended for consideration at the Committee’s 25 April
2012 meeting. The draft Recommendation is that the European Parliament should
At the meeting on 25 April, the Committee deferred the final vote on the
draft recommendation until the Committee’s next meeting to provide other
European Parliament committees an opportunity to comment on the Agreement.
On 31 May 2012, the committees concerned, the Committee on Legal Affairs,
the Committee on Civil Liberties, and the Committee on Industry, Research and
Energy, voted against ACTA ratification.
While the Committee on International Trade’s draft Recommendation has no
formal standing at this stage, it is likely to indicate the views of Committee
Members. Should the Committee on International Trade recommend that ACTA be
rejected, and the plenary of the European Parliament adopt that recommendation,
the European Union (EU) would be prevented from ratifying the Agreement.
The Explanatory Statement included with the draft Recommendation by the
Committee on International Trade summarises many of the concerns that have been
expressed in relation to ACTA since it became public. The concerns focus
principally on the lack of clarity in ACTA, particularly in relation to
individual freedoms, and the potential consequences of the lack of clarity in
In the United States (US) ratification of ACTA appears to have stalled amidst
a debate about the constitutional validity of the way in which the Office of
the United States Trade Representative negotiated ACTA.
At issue is whether the Executive Branch (the President) alone has authority
alone to ratify ACTA on behalf of the US or whether the US Senate or
alternatively both chambers of Congress need to give consent.
The response by officials from the Australian Department of Foreign
Affairs and Trade (DFAT) when questioned on the apparent difficulties faced by
ACTA in other countries has been to characterise the difficulties as part of a
‘very vigorous debate’, but that ’no country has indicated that it will not
In a rapidly changing situation, media and other reports also indicate
n Poland has suspended
consideration of ratification of ACTA until at least the end of 2012;
n Bulgaria has
suspended consideration of ratification until European Union member states
elaborate a joint position on ACTA. It is not clear whether
this means the position elaborated by the European Union or each EU country
n Germany has not
signed ACTA, and will not do so until the European Parliament has expressed an
n The Czech Republic
has suspended the ratification process until further notice; 
n A motion passed the Dutch
Lower House recommending rejection of ACTA;
n The Slovak Republic
has suspended the ratification process until further notice;
n Switzerland has
postponed signed ACTA until issues relating to personal freedoms have been
Despite DFAT’s optimistic outlook, there appears a very real possibility
that ACTA will not be ratified by sufficient countries in order to come into
As has been stated in the previous chapters, the Committee is concerned
about the lack of clarity in the text, the exclusion of provisions protecting
the rights of individuals, and ACTA’s potential to shift the balance in the
interpretation of copyright law, intellectual property law and patent law. The
international reaction to ACTA, which, without exception, comes from countries
which the Committee considers would have the same interests as Australia, must
be taken into consideration.
The Committee is aware of the significant support for this treaty from
the performing arts community. The Committee strongly supports protecting
The Committee also notes that the Australian Law Reform Commission (ALRC)
is currently conducting an inquiry into Copyright and the Digital Economy.
The draft terms of reference have clear relevance to ACTA and the issues
discussed in this report. The ALRC’s draft terms of reference include:
Having regard to:
n ...Australia’s international obligations,
including any existing or proposed international obligations...
In undertaking this reference, the Commission should:
n take into account the
impact of any proposed legislative solutions on other areas of law and their
consistency with Australia’s international obligations...
The Committee notes that the ALRC is to report no later than 30 November
2013 and believes that it is prudent to await the outcomes of this inquiry as they
will better inform the Committee’s future deliberations on ACTA’s ratification.
The Committee considers that it would be wise to adopt a conservative
approach to ratification of this treaty. If this is the future of copyright
and IP regulation, then potential parties to the treaty, like the EU, will,
after consideration, ratify this treaty. However, copyright and IP holders in
Australia will not be best served if the treaty is ratified by Australia and a
handful of others, but is not compatible with the copyright and IP regimes
applicable in major creative centres as the United States and Europe.
It is prudent, therefore, that ACTA not be ratified by Australia until this
Committee has received and considered the assessment of the economic and social
benefits and costs of the Agreement, the Australian Government has issued the
notice of clarification in relation to the terms of the treaty as recommended
in this report and the ALRC has reported on its inquiry into Copyright and the
Digital Economy. In considering its recommendation to ratify ACTA, a
future Joint Standing Committee on Treaties should have regard to events
related to ACTA in other relevant jurisdictions, including the EU and the US.
That the Anti-Counterfeiting Trade Agreement not be
ratified by Australia until the:
Standing Committee on Treaties has received and considered the independent
and transparent assessment of the economic and social benefits and costs of the
Agreement referred to in Recommendation 2;
n Australian Law Reform
Commission has reported on its Inquiry into Copyright and the Digital
Economy; and the
Government has issued notices of clarification in relation to the terms of
the Agreement as recommended in the other recommendations of this report.
||In considering its recommendation on whether or not to
ratify the Anti-Counterfeiting Trade Agreement (ACTA), a future
Joint Standing Committee on Treaties have regard to events related to ACTA in
other relevant jurisdictions including the European Union and the United
States of America.
Kelvin Thomson MP