284. The representative of Brazil said that IPRs had been negotiated during the Uruguay Round as part of a broader package, which included agriculture, NAMA, services and other areas. There was no mandate to discuss TRIPS-plus enforcement measures in the Council. The discussion of ACTA could therefore only be of an informative nature.
285. IP infringement was a global phenomenon, which affected developing and developed countries, albeit in different ways. Given the complexities involved, "one size fits all" solutions were not the best approach. Each country required specific solutions. Only a broad discussion at the multilateral level could therefore reflect the different political and social variables.
286. He drew Members' attention to TRIPS Article 1.1, which allowed Members to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice. In addition, Article 41.5 stated that there was no "obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general (…) ".
287. ACTA was a plurilateral agreement negotiated with selective participation, which did not follow the standards of inclusiveness and transparency of multilateral negotiations. A superficial approach risked, among others, that (i) IPRs be abused; (ii) obstacles to legitimate commerce be erected, which had already led to serious consequences in the area of public health, with the apprehension of medicines in transit; and (iii) due process of law be disregarded and civil rights not be respected.
288. A number of analyses questioned the compatibility of ACTA with the TRIPS Agreement, regarding its provisions on border measures, civil and administrative procedures and remedies, as well as provisional measures. ACTA only provided repression as the remedy to counterfeiting and piracy. There was, however, a growing perception that, in order to face IP infringement, a comprehensive policy was necessary, combining repressive measures, educational efforts and public policies to foster the creation of formal jobs.
289. The agreement claimed to strike a balance between IP enforcement and the rights to freedom of expression and privacy, in particular due to the existence of some safeguards in the text. However, substantive provisions raised concerns that it was biased in favour of IP right holders. There was no guarantee that the implementation of its substantive provisions would not affect fundamental civil rights, such as the right to privacy, presumption of innocence, due process of law, proportionality between offenses and sentences, protection of third party interests, participation in the information society, etc. For instance, ACTA allowed for the identification of internet subscribers in case of alleged infringement, upon request by the right holder. It also stated that such personal data was to be disclosed by an online service provider. In the absence of a precise definition of "online service provider", it could be understood in a very broad way, ranging from access providers to sites which hosted contents, including social networks.
290. He noted that ACTA had been the object of deep concern of civil society organizations around the world, including in the countries that had signed the agreement. Recently, the EU trade Commissioner had announced the European Commission's decision to ask the European Court of Justice for a legal opinion regarding the conformity of ACTA with European legislation. This was an indication of the need of promoting a true public debate on the merits of such an agreement.
