Archive for July, 2012

Taking a bite out of Apple

Following my colleague John McGonagle’s blog on the recent Samsung v Apple case in the High Court in London, there has been an interesting further development in this battle of the tech giants.

An order for Apple to publicise the decision of the High Court

As John noted in his blog, Samsung was successful in its application for a declaration by the Court that its Galaxy tablet did not infringe the registered design of Apple’s iPad. Now Samsung has returned to Court to successfully obtain an order that forces Apple to publicise the High Court’s decision on the Apple UK website for 6 months and in certain leading UK based press and magazines such as the Guardian, the Financial Times and T3.  This could obviously be damaging to Apple.  Not only will it have to publicise that the Samsung product does not infringe its iPad, but it is also effectively giving free advertising to a competing product. 

To the lay observer, this may be a surprisingly draconian order for the Court to make.  However, this is not the first time that such an order has been granted in an intellectual property case.  The basis for such an application is found in Article 15 of the IP Enforcement Directive 2004/48.  It states that:

Member States shall ensure that, in legal proceedings instituted for infringement of an intellectual property right, the judicial authorities may order, at the request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of the information concerning the decision, including displaying the decision and publishing it in full or in part. Member States may provide for other additional publicity measures which are appropriate to the particular circumstances, including prominent advertising.

The article was given force in England by Practice Direction 26.2 to Part 63 of the English Civil Procedure Rules.  The equivalent enforcing legislation in Scotland is (Section 5 of the IP (Enforcement, etc) Regulations 2006).  

The rationale behind this Article is best explained by recital 27 of the Enforcement Directive which states that its purpose is:

To act as a supplementary deterrent to future infringers and to contribute to the awareness of the public at large, it is useful to publicise decisions in intellectual property infringement cases.

The eagle eyed amongst you will have noticed that the Article and the Recital state that the order may only be granted for “infringement proceedings” and it does not specifically say it may also be used in an application for a ‘declaration of non infringement’.  Perhaps it was not countenanced by the drafters of the Directive that the provision would be used by a pursuer in such circumstances?  Nevertheless, the English Court  interpreted the Directive in a wide manner and whilst recognising the distinction, it took a practical approach that the order could be made in favour of the successful party in infringement and declaration of non infringement proceedings.  The real question it had to answer was not whether the Court had jurisdiction to make such an order, but whether its power to do so should be exercised.

The Court’s justification for granting the order to publicise

In granting the order that Apple must publicise the English Court’s ruling of non-infringement in the UK, a key consideration was certain statements made by Apple in response to the Court’s decision.  Apple asserted that notwithstanding the  finding of non infringement, Samsung was guilty of ‘blatantly copying’ and that its Galaxy Tablets look a ‘lot like the iPhone and iPad’.   The Court accepted that Apple is entitled to express its opinion that the earlier decision was incorrect and that they could not be prevented from doing so under the freedom of speech provisions in Article 10 of the European Convention on Human Rights.   However, the Court also recognised that such statements could cause ‘commercial harm’ to Samsung  because of the innuendo that Samsung still infringed Apple’s designs, and in this case it decided that it was appropriate to make an order to publicise the judgment.     

One limitation is that in granting the order, the Court noted the differing decisions (some in favour of Apple, some in favour of Samsung) there have been in the various battles between the companies across Europe and in the US and it therefore limited the order to for Apple to publicise the judgment in the UK only.

The lesson?

The lesson in this case is that it could be dangerous to protest too much.  If Apple had accepted the Court’s decision without criticism, the Court may have found it more difficult to justify the order for publication which Samsung sought.   However, Apple may still feel ‘vindicated’ that it can continue to protest its innocence and criticise the Court’s ruling.  Perhaps a carefully constructed advertising campaign could minimise any damaging effect on the sales of Apple products caused by the necessity to publicise the decision.

Apple has already been granted permission to appeal the finding of non infringement and at the time of writing this blog there is no sign (either on its website or in the press) that it has complied with the Court order to publicise the decision.

Mark Cruickshank

e-update on ECJ decision confirming the right to resell used software licences

We have this morning issued an e-update to clients and contacts on a recent European Court of Justice (ECJ) decision on the rights of licensees to resell licences for downloaded software. The e-update is based on my recent blog.

The case
The case involved the US software giant Oracle, and a German company, Usedsoft. Oracle tried to argue that the exhaustion principle under the European software directive did not apply to downloaded software. The exhaustion principle states that once a rights holder has sold something to another party in the EU, he can no longer how it is distributed (so, for example, Levi’s cannot stop Tesco from selling Levi’s jeans in its stores, if Tesco purchased those jeans from a distributor within the EU).

The ECJ rejected this position, holding that the principle applied regardless of whether software is sold on CD/DVD, or downloaded from the internet.

The decision is good news for organisations that use software, improving competition and creating an alternative market (outside the authorised reseller network) for organisations to buy and sell software licences.

The ruling doesn’t apply to all software licences and there are some rules that you need to be aware of before you start trading your licences. The e-update summarises the key issues to be aware of in relation to the judgment and also highlights some potential opportunities for organisations to look again at the way they value their software licences, which may help to improve their balance sheet.

Read the e-update
You can read the e-update by following this link.

How does your organisation currently value its software licence portfolio? We’d love to hear from you in our anonymous online survey on how organisations value and exploit their intellectual assets. Click here to tell us what you think.

If you would like to register to receive future e-updates from Brodies, please follow this link.

The joke’s on Twitter – conviction quashed in the Twitter joke trial

Did you hear the one about the guy on Twitter who joked about an airport?  He experienced some turbulence.

The High Court in London has quashed the conviction of a man who was originally found guilty of sending a “threatening” tweet.

Paul Chambers was found guilty in May 2010 of sending a “menacing electronic communication” after he tweeted to his 600 Twitter followers:

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!!

Mr Chambers has maintained that his tweet was obviously a jovial expression of his frustration at the airport closing due to heavy snow.

Did you hear that the guy who threatened the airport on Twitter was cleared?  He must have friends in high places.

“Out of date”, was the verdict of Lord Judge.  Surprisingly he wasn’t referring to Stephen Fry and Al Murray, both of whom attended court in support of Paul Chambers.  Lord Judge was actually admonishing the Communications Act 2003 under which Mr Chambers was charged.

Section 127 of the Act makes it an offence to send “by means of a public electronic communications network” a message that is grossly offensive or of an indecent, obscene or menacing character. The Crown Prosecution Services website, in its website guidance on Communications Offences, advises that section 127 should be used for indecent phone calls and emails, but doesn’t refer to Twitter – mainly because Twitter hadn’t been invented when the legislation was enacted.

Why did the guy on Twitter threaten to bomb Robin Hood Airport? He wanted to steal from the rich and fly to Darfur.

The decision is a common sense one, but also a reminder of the perils of social media and the ease with which flippant comments can be easily misconstrued. There has already been £90,000 worth of libel damages for a 24 word tweet.

In particular employers would be advised, if they have not already done so, to implement policy on the appropriate use of social media. The ACAS guide “Workplaces and Social Networking: The Implications for Employment Relations” offers guidance as to good practice.

And for all the lawyers who visit Brodies Tech Blog to keep up to date, I would refer you to the Law Society of Scotland’s recent guide “Social Media – Advice and Information for the Legal Profession”.

Remember, different businesses will require different policies, depending on the extent to which each business expects its staff to utilise social media. Brodies’ technology and employment lawyers can help you to develop an appropriate policy for your business.

Heard the one about Twitter accounts being anonymous?   The Net is tightening…

In the case of Paul Chambers, he didn’t seek to disguise his identity and was therefore easy for the authorities to identify. 

But what about Twitter users who definitely wish to stay anonymous (and aren’t just vicious internet trolls, who deserve no anonymity)?  A good local example would be whoever is running @rangerstaxcase, a Twitter account and blog that has won awards for publishing stories regarding the financial scandal at Rangers Football Club which the mainstream Scottish press failed to address.

At present the owner of spoof Twitter account @UnSteveDorkland, which makes fun of Northcliffe Media Limited’s chief executive Steve Auckland, is trying to prevent Twitter from revealing his details

We wrote last year about the legal means of compelling Twitter to surrender details of account holders, in the context of Ryan Giggs and tweets about his super injunction which he wished to suppress.

It’s still not clear if Twitter will always co-operate in such circumstances.  Nevertheless these developments create the impression that – while a presumption of anonymity on Twitter isn’t yet a joke, it is under serious threat – and that can’t be good for Twitter in the long term.

(Rubbish jokes are all my own.  For lots more, and some occasional legal comment, follow me at @denislawyer.)

Let the Games begin – but beware of the brand!

My colleague Robert Buchan and I have written an article on the current hot topic of brand protection of the London Olympics. 

The article looks at the wide ranging law in place to prevent non sponsors from seeking to associate themselves with the London Olympics.  In particular, the article will be of interest to any businesses or individuals who are hosting any Olympic themed events or who are thinking about issuing any promotional material which refers (even discretely!) to the Olympics.

You can read the full article on the Brodies’ website here.

How do you deal with the IP issues? Let us know by taking part in our survey on how organisations value and exploit their intellectual assets.  

Mark Cruickshank

Law Commissions launch consultation on reform of consumer protection laws

The Law Commission and the Scottish Law Commission have today launched a joint consultation on proposals to protect consumers from “unfair terms hidden in small print.”

The law in this area was last substantively updated in 1999, when the Unfair Terms in Consumer Contracts Regulations were passed. These regulations implemented a European directive on consumer protection.

Any business the trades with consumers should take an interest in the consultation, as the recommendations made by the Commissions will impact on the terms that businesses can include in their consumer contracts (and the way that they publicise their goods and services), and the rights and remedies of consumers in relation to terms that are unfair.

The proposed reforms
The 1999 regulations include exemptions from the right to challenge unfair terms in relation to price and subject matter (what you are buying). Notably, the Commission is proposing that the pricing and subject matter may only be exempt from challenge “only if they are transparent and prominent in the original contract.”

The proposals are intended to address misleading pricing on websites and the fact that many consumers simply don’t read terms and conditions that are longer than a Shakespearean play.

Part of this is ensuring that the price provided up front is clear, and that further charges are not hidden in the small print.

The Commissions are also looking for confirmation that the recommendations in their last review of this area of the law (in 2005) remain valid.

BIS proposals
The consultation also coincides in with plans announced by BIS last week to strengthen and clarify consumer rights.

You can access the consultation papers on the Law Commission website.

The consultation closes on 25 October 2012.

Techblogger article on data protection law reform and why it matters to HR professionals

My colleagues Grant Campbell and EmploymentBlog blogger (and empoyment partner) Tony Hadden have an article in Personnel Today looking at the implications for HR professionals arising out of the European Commission’s proposed reform of EU data protection law.

The article looks at some of the key changes proposed under the draft regulation, and how these will impact upon HR professionals – such as the “home regulator” principle, increased responsibilities for data processors, increased rights for individuals, breach notification, an increased power to fine, and the general beefing up of the obligations on data controllers.

You can read the article on the Personnel Today website. Alternatively, you candownload the full version from the Brodies website.

Honey, I stopped the infringement – European wide patent injunctions

How do you deal with the IP issues? Let us know by taking part in our survey on how organisations value and exploit their intellectual assets.

 

A recent decision by the Court of Justice of the European Union (CJEU) has opened up the possibility that a national court in one European country could possibly grant an interim protective measure potentially having effect across the whole of Europe, such as an interim interdict (injunction), in European patent infringement proceedings.  A European patent is a bundle of national patents which have to be enforced nationally in the relevant court of each country in which the patent has been validated as currently it is accepted broadly in the UK that it is not possible to enforce them on a European wide basis (in the sense in all countries in which the patent has been registered nationally).

This recent decision however indicates that in certain circumstances it may be possible for an interim injunction to be granted with pan-European effect.

A brief background

In the case of Solvay SA v Honeywell Fluorine Products Europe BV and others Solvay raised patent infringement proceedings in the Dutch court against 3 Honeywell companies for infringement of the national patents making up its European patent. One of the Honeywell companies was established in the Netherlands and the other two were established in Belgium. The alleged infringing activity was being carried out by both companies in relation to the same national patents which made up the European patent and which were registered in around 10 European countries (but significantly not in the Netherlands or Belgium in which these companies were based). In the course of the proceedings before the Dutch Court, Solvay sought a wide interim injunction in respect of all 10 countries in which the European patent was nationalised, to prevent the alleged infringing activity, pending the outcome of a full trial.  Honeywell then raised a counter argument that the European patent which it was claimed to infringe was invalid, even although it had not as yet raised a formal counterclaim seeking to invalidate the patent.

The issues raised and the CJEU’s decision

The case raised some interesting issues and various questions were referred to the CJEU for guidance. The 2 key questions which were answered were as follows:

  • Firstly, the CJEU accepted that there was in principle a risk of irreconcilable judgments if it was necessary to raise such interim infringement proceedings in both the Netherlands and Belgium. The situation here was that the Dutch and non-Dutch defenders were accused of the same allegedly infringing acts in respect of the same national patents, albeit in force in other member states. On this point, the CJEU ruled that the same national court could deal with such interim infringement proceedings where the court had jurisdiction against at least one defender. It is always up to the national court to determine if the claims are “so closely connected that it is expedient to hear and determine them together” but it makes sense to do so where the same national patents are in play.
  • Secondly and potentially of greater significance, could an interim injunction be granted and applied throughout Europe even although the defender counterclaimed that the alleged infringed patents were invalid? Honeywell would require to raise such invalidity proceedings in one of the countries in which the patent was registered and thus the Dutch Court had no jurisdiction to make such a substantive ruling on invalidity. Issues of validity have to be dealt with in the court of the member state in which the patent is registered in terms of the Brussels Regulation. Looking at the relevant competing provisions of the Brussels Regulation (Articles 22(4) and 31)  the CJEU ruled that as far as interim measures were concerned the Dutch court should not be prevented from granting such interim measures against infringement just because issues of validity were raised and which would in substance have to be dealt with by other national courts. It should be open to the Dutch court to make an interim assessment over how the court in another European country would rule on the issue of validity.  If the Dutch court considered that there was a ‘reasonable, non-negligible possibility” that the patent in suit would be declared invalid, then it should not grant the interim injunction. However, if there is no such risk, the Dutch court could in theory grant the interim injunction in all of the 10 countries in which the national patents were registered.

So what could this mean for owners of European patents?

This decision may be a welcome one for the owners of European patents because it confirms in principle at least that national Courts can rule on pan European patent infringement cases on an interim measure basis involving defenders which are based in different countries. This could in theory make enforcement of a European patent on an interim basis much more cost effective if it allows pan-European relief in respect of the infringement of the same national patents.  This is particularly so bearing in mind that often disputes resolve after such an interim measure is granted. Furthermore, the guidance means that alleged infringers of European patents cannot necessarily avoid such interim injunctions being granted simply by raising invalidity arguments where the initial assessment is that the attack has little or no prospects of success.

Does this apply to other areas of IP?

The Honeywell case only concerned interim infringement proceedings in relation to a European patent. However, there is authority for a similar application of this point of law in relation to infringement of a Community Trade Mark. In last year’s case of DHL Express v Chronopost the CJEU ruled that an injunction granted in one member state in respect of infringement of a Community trade mark can potentially have effect throughout the rest of Europe (albeit it would generally have to be demonstrated that there were infringing activities taking place across the whole of the Community as opposed to only in a few member states in which case the injunction would likely be limited to such member states). In addition the distinction is that trade marks can be registered and enforced Community wide, which is not the position with patents at present.

At the end of the day it remains to be seen how this guidance from the CJEU is applied nationally by the Dutch court and indeed by other national courts within Europe. Will it signal the start of pan-European interim injunctions in patent cases or be limited to the specific facts of this case? The potential seems to be there for the former but it is far from certain and in cases of urgency it may well be the case that patent owners may be wise to take action on a national basis.

The CJEU ruling also casts an interesting light on the ongoing political and professional debate about the establishment of the Unitary Patent and Unitary Patent Courts within Europe, hailed as the way to enforce patents on such a European wide basis.

Robert BuchanMark Cruickshank

Sharing your user generated content from the Olympics – what can and can’t you do?

Are you going to the Olympics this year?

Then before you get your camera/smartphone out you should have a quick read of LOCOG‘s terms and conditions.

For those that don’t want to read the terms and conditions in full, I have set out a commentary (not a critque) on the key terms below.

Can I share my photos and video clips from the Games on social media websites?
The terms and conditions of purchase prevent spectators contain fairly restrictive conditions on what spectators may do with photos, videos and sound recordings that they take whilst attending the Games:

Images, video and sound recordings of the Games taken by a Ticket Holder cannot be used for any purpose other than for private and domestic purposes and a Ticket Holder may not license, broadcast or publish video and/or sound recordings, including on social networking websites and the internet more generally, and may not exploit images, video and/or sound recordings for commercial purposes under any circumstances, whether on the internet or otherwise, or make them available to third parties for commercial purposes.

Note in particular the prohibition on commercial exploitation (understandable, given that extensive commercial broadcasting and photography arrangements are already in place) and sharing content on social networking websites “and the internet more generally.”

“Games” means the London 2012 Olympics and London 2012 Paralympics. This will clearly include footage of the actual sporting events and stadiums, but does it go further? Given that these restrictions form part of the ticketing terms and conditions I think they can only apply to media created by spectators within the ticketed areas – so inside Olympic Park and the other venues.

So if you want to take a photo of the stadium using Instagram (to pretend that you are actually at the 1968 games in Mexico City), tag some friends in a video of an event at the North Greenwich Arena on Facebook, or even simply tweet a photo of the view of Olympic Park from the top of The Orbit, then tough.

If you share a photo of the Olympic stadium taken from outside the perimeter of Olympic Park, or the Olympic Rings hanging from Tower Bridge, then you are presumably ok.

But there are millions of spectators. Will LOCOG actually enforce this?
Whether and how LOCOG will actually enforce this restriction remains to be seen. With millions of spectators attending events, it’s hard to see how it can monitor uploads to all the social media networks, never mind ensure that non-compliant content is taken down.

And what about athletes and support staff? They won’t be subject to the terms and conditions of purchase. Have they had to accept similar restrictions on their use of social media?

The conundrum for LOCOG is the difficulty in balancing the legitimate interests of it commercial rightsholders (both broadcasters and sponsors) and inoffensive personal use of social media networks by millions of spectators.

Legally, these terms might protect those commercial rights, but whether they will work in practice is another question.

So can I share content on the London 2012 website?
Perhaps confusingly, LOCOG does appear to invite spectators to share content on its own website. But, again, you might want to check the terms of use before you do this.

As you might expect, by uploading content onto the London 2012 website you grant LOCOG a fairly wide licence to exploit and reproduce your user generated content (UGC). That licence is, on the face of it, non-exclusive, so in theory you could also grant a similar licence to other entities and (provided that you are not breaching the spectator terms and conditions mentioned above) share it on other social media websites, or offer it for commercial licensing through, say, Flickr and Getty Images.

But there is a sting in the tail. Firstly, you waive your moral rights (so have no right to be acknowledged as the creator of the UGC). Secondly, the licence is perpetual, so once uploaded it is unlikely that you can bring it to an end by, say, removing your UGC from the website. And thirdly:

…you grant us an option (“Option”) to acquire the exclusive rights to utilise such UGC in all media by way of an assignment by you to us…(“Assignment”), which Option we may exercise on giving you notice by email within 90 days from the date on which you upload the UGC, and you agree that: (A) during that 90-day period and for 30 days thereafter, you will not utilise or authorise anyone else to utilise such UGC in any commercial medium or in any public, non-commercial medium without our prior written consent; (B) within 30 days following our giving such notice, you and we shall negotiate (both acting in good faith and reasonably) on an exclusive basis a sum to be paid to you in consideration of the Assignment (“Option Sum”); (C) if the Option Sum is not agreed within such 30-day period, we shall thereafter have a right of last refusal, under which (1) you will give us written notice by email setting out the proposed terms of any bona fide third-party offer…and we shall have a 30-day period in which to acquire the same on the same terms and (3) if we decline, you may only enter into such third-party agreement subject in all applicable respects to our and our licensors’ proprietary rights and then on the exact terms offered; and (D) in the event that the Option Sum is agreed, you shall promptly following our request sign a written confirmation of the Assignment…

what does this mean in plain english?
What this means is that LOCOG has the right to acquire ownership of your UGC, should it so wish. If it gives you notice that it wishes to do this then you will have to remove the UGC from any other social media website for a period of 120 days, whilst you agree a fee for the assignment. If you don’t agree a fee then LOCOG has the right to match any fee agreed with any third party. However, the value to any third party agency may be diminished by the extensive (and perpetual) rights already granted to LOCOG when uploading the UGC to the London 2012 website.

In short, this clause appears to be another way of limiting the ability of third parties to commercially exploit Olympics related content.

So, if you take a fantastic photo of the Olympics atmosphere that you think could become an iconic image, then think carefully before sharing it on the London 2012 website.

As the terms and conditions say:

IF YOU DO NOT WANT TO GRANT THE RIGHTS SET OUT ABOVE, PLEASE DO NOT UPLOAD YOUR UGC TO THE SITE

You have been warned!

PS do you accept user generated content on your website? How do you deal with the IP issues? Let us know by taking part in our survey on how organisations value and exploit their intellectual assets.

Video games – new age ratings system introduced

Back in 2008 the Government commissioned the Byron Report (by Dr Byron of “House of Tiny Tearaways” fame). The Report addressed the negative influence that video games and the internet had on children and sought to put some measures in place to, well, curtail the corruption of the UK’s youth.  

One recommendation was stricter (and more straight forward) controls around access to video games.

This recommendation was set into action under the Digital Economy Act, and Government has now confirmed that the new age-rating system will come into force with effect from 30 July 2012.

The Dual System
The UK currently has a dual classification system, which is in part mandatory and in part voluntary.

Under this confusing system, video games are classified by two bodies, which have overlapping roles:

  • Pan European Game Information System (PEGI), administered by the Video Standards Council (VSC) in the UK; and
  • British Board of Film Classification (BBFC).

To date, the vast majority of games only carry a PEGI age rating – which provides guidance as to the content of the game and allows the buyer to make an informed choice.

If the content contains content or themes that of particularly adult nature, then the game may also be reviewed by the BBFC and be given an additional rating (using the same symbols as those used for age-rating films). Unlike the PEGI rating, the BBFC ratings are legally binding on retailers in that it is an offence to sell a BBFC game to a person that is below the relevant age rating.

Understandably, this dual system has caused some confusion for consumers. As a result, it is all change at the end of the month.

What is a PEGI rating and what is changing?
PEGI is a European system for rating the content of video games which came into use in April 2003 and is used in 26 countries.

There are two parts to the PEGI classification system:

  • a minimum age (3, 7, 12, 16, 18); and
  • up to seven descriptions of content, such as the use of violence, strong language and gambling, and so on.

To date, participation in the PEGI scheme has not been mandatory – participation is at the game developer’s discretion, and the minimum ages are recommended rather than legally binding.

However, from the end of July, this will change and the VFC will now assume statutory responsibily for rating games, using the PEGI system. As part of this, retailers should be aware that the ratings of age 12 and upwards will now be binding and it will be an offence for a retailer to sell a game that has a PEGI rating of 12 + to anyone under that age.

What is a BBFC rating?
To date, the BBFC’s remit has included statutory rating under the Video Recordings Act.

Most video games have been exempt from the requirement to obtain a legally binding BBFC classification. However, certain games that, for example, are particularly violent or explicit have required a formal BBFC classification – broadly speaking, those that are ‘adult’ in content. About 10% of games in the UK have gone to the BBFC for classification, and will in the main be rated 18.

Whilst the BBFC has provided some guidance on when a game might be exempt, it has been up to the developer or distributor to decide whether the game requires statutory classification from the BBFC.

Under the new regime things will get much simpler, as the VFC takes on responsibility for age rating. Only those games that contain “very sexually explicit material”, need to be submitted to the BBFC for classification (as 18R). If such a rating is applied by the BBFC, then the game may only be sold in licenced sex shops.

Further information on the PEGI rating system can be found here  and the BBFC rating here (although note that the BBFC guidance has not yet been updated to reflect the new regime).

Leigh Kirktpatrick

Is ACTA dead in the water?

The European Parliament has delivered a resounding veto to the Anti Counterfeiting Trade Agreement (ACTA).

In my previous blog on ACTA, I wrote about the widespread opposition to ACTA on the grounds that it contains:

…vaguely worded provisions which could potentially allow internet service providers to monitor and disconnect repeat infringers and that it makes available unfair statutory damages for online music infringement to rights holders.

It could also have:

…given customs officers much greater powers to search and seize goods which are suspected of infringing intellectual property to prevent them from crossing national borders.

It will come as no surprise therefore that the European Parliament voted against ratifying ACTA on 4th July. The margin by which it was rejected, 478 votes to 39 (with 165 abstentions), is indicative of the unpopularity of this agreement.

What does the rejection mean?
It now means that none of the EU Member States can join ACTA.  In truth, the veto will have little impact for the internal laws of many member states (particularly in Scotland and the rest of the UK) because most of the proposals set out in ACTA are already present in domestic and European law. 

However, the rejection has more significance in terms of international enforcement and co-operation.  ACTA aimed to allow greater cross border protection against intellectual property infringement and it would have allowed rights holders and customs officers enhanced powers in countries where those powers did not already exist.

Where now for ACTA?
The rejection of ACTA will be celebrated by its opponents, such as supporters of open rights groups but is this really the end for ACTA? Perhaps not.

Prior to the European Parliament’s vote, the Court of Justice of the European Union had been asked to rule on ACTA’s compatibility with European law.  That decision will still be issued (irrespective of the European Parliament’s veto) and the EU Trade Commissioner will then discuss with the other international sponsors of the Agreement how ACTA wil be taken forward, if at all.

ACTA could also still come into force in its current form in other sponsor countries if six members of the agreement ratify it. However, without the approval of the EU (and potentially the US) its impact will be much less forceful.

Nevertheless, this is likely be the end of the road for ACTA in its present form (certainly in the EU) as it would require wholesale modification before being re-submitted to the European Parliament. 

Given the opposition to ACTA so far, perhaps it would be better simply to acknowledge the widespread unpopularity of the Agreement and consider alternative means of trans-national intellectual property enforcement.

Mark Cruickshank


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