Yesterday, Minister Verhagen, the Dutch Minister of Economic Affairs, Agriculture and Innovation responds in a letter to the ACTA criticism of professor Michael Geist. ACTA is a controversial agreement on international standards for the protection and enforcement of intellectual property. Below a short summary of the main points of Verhagen’s letter. 

Professor Geist advocates openness and transparency in negotiations regarding an international agreement such as ACTA. Verhagen shares his point of view. However, it is not uncommon that negotiations of a trade agreement are confidential according to the Dutch Minister. Verhagen says the negotiation process of ACTA could have been more transparent, but the interests of the parties concerned have been taken into account.  A side effect of the confidentiality of the negotiation process is that the public discussion deals more with topics that are not part of ACTA than the agreement itself, such as the ‘three strikes rule’ that is not even included in ACTA.  

Furthermore, Verhagen states ACTA is consistent with the legislation of the European Union and no revision or adaption of the Dutch and European Union law is required. Member States don't have to revise or adapt the measures and instruments to convert European Union law to national law.

Also, professor Geist argues development countries are disadvantaged, because they have been excluded from the ACTA negotiations and the ‘ACTA-partners’ will only focus on the ratification of ACTA and not on the progress of the WIPO Development Agenda. According to Verhagen however this is incorrect, as the development countries have not been excluded from ACTA. Every state is informed about the ACTA negotiations in an early stage, but not every state asked for participation. ACTA only binds parties who choose to join. Furthermore, Geist's presumption that ACTA stands in the way of the WIPO Development Agenda is unfounded, Verhagen says, because WIPO members committed themselves to the execution of the Agenda and project proposals are being implemented, monitored and discussed continiously during WIPO meetings. 

Some provisions mentioned in ACTA are optional and don't have to be implemented to meet the international obligations that arise from the agreement. Geist fears that these provisions will become mandatory in practice through diplomatic pressure. According to the Minister, the choice to take measures remains with the contracting states. When the Netherlands or another state wants to implement an optional provision, it follows the normal legislation process, which has democratic safeguards.

Although the Dutch government believes that ACTA is consistent with the Dutch and European Union Law, it will not sign before the Court of Justice pronounces it's decision about the constitutionality of the agreement. Surely to be continued. 

Read more about ACTA on Future of Copyright: 

• The European Commission refers ACTA to the European Court of Justice
• ACTA's future in danger due to protests in many European cities

Reference: Kamerbrief verzoek reactie kritiek op ACTA en brede visie internetvrijheid

By: Marjolein van der Heide