January 26, 2012
The European Commission published a document in defense of ACTA, “10 Myths about ACTA“. It is pure propaganda. The document is widely distributed by polish authorities.
Let’s take a look.
Myth 1: ACTA is a secret agreement. Negotiations were not transparent and conducted “behind closed doors”. The European Parliament was not fully informed.
Commission: “The text of ACTA is publicly available to all.”
The final text is indeed available.
Commission: “The negotiations for ACTA were not different from negotiations on any other international agreement.”
That is not true. WTO and WIPO have much more transparency and input from NGOs.
Commission: “It is a fact that such agreements are not negotiated in public, but with the Lison Agreement and the revised Framework Agreement there are clear rules on how the EP should be informed of such trade negotiations. And these have been scrupulously followed.”
Still, the Parliament could not discuss the text openly. No feedback from experts possible. And earlier versions are still secret, while they may be important for interpertation in conflict resolution.
Commission: “Commissioner De Gucht has participated in three plenary debates, replied to several dozens of written and oral questions, as well to two Resolutions and one Declaration of the EP, whilst Commission services have provided several dedicated briefings to MEPs during the negotiations.”
Remember De Gucht said that there will not be a definition of commercial scale in ACTA? http://keionline.org/node/886
Commission: “Likewise, the public was informed, since the launch of the negotiations about the objectives and general thrust of the negotiations. The Commission also released summary reports after every negotiation round and the negotiating text since April 2010.”
Like this document, the summary reports did not contain correct information.
Myth 2: ACTA leads to “harmonisation through the backdoor”. A study ordered by INTA to academics says that ACTA will require changes to EU enforcement legislation and/or to national laws.
Commission: “ACTA provisions are compatible with existing EU law.”
Prominent European Academics do not agree: http://www.iri.uni-hannover.de/acta-1668.html
Commission: “ACTA will not require any revision or adaptation of EU law and will not require any Member States to review the measures or instruments by which they implement relevant EU law. ACTA is also in line with relevant international law, in particular the TRIPs Agreement.”
ACTA goes beyond the TRIPS agreement. The ACTA text only mentions the Doha Declaration once in the non binding ACTA preamble. The combination of heightened measures with a non binding reference to the Doha Declaration, and DG-Trade and the US Trade Representative undermining the Doha Declaration in other fora does not provide sufficient safeguards for access to medicine.
ACTA is not compatible with article 15 of the UN International Covenant on Economic, Social and Cultural Rights (ICESCR).
Nor is ACTA is compatible with articles 17 and 19 of the UN International Covenant on Civil and Political Rights (ICCPR). http://acta.ffii.org/?p=992
Commission: “This has been confirmed in very clear terms by two Opinions of the Legal Service of the European Parliament which were requested by the INTA and the JURI Committees.”
The FFII compared the legal service’s opinions with academic opinions, and found that the legal service consistently overlooks known issues.
Commission: “The INTA study does not show evidence of any concrete situation where ACTA would contradict, repeal or require the modification of a single provision existing in EU legislation. Instead, it gives two examples ”
The INTA study also mentions problems with injunctions, page 25.
Commission: “(regarding the coverage of all trademark infringements by customs controls and regarding the calculation of damages based on the value of the real goods) where it cautions against the possibility that the EU be found in breach of ACTA due to the interpretation that some of its members may have of the implementation of ACTA’s rules.”
No, the INTA study said: “In light of the analysis conducted, it can be argued that the provisions of ACTA appear to be, in most cases, in line with the EU acquis communautaire. However, in some cases, ACTA is arguably more ambitious than EU law, providing a degree of protection that appears to go beyond the limits established in EU law. Therefore: for those European Parliamentarians for whom conformity with the EU Acquis is sine qua non for granting consent, this study cannot recommend that they provide such consent to ACTA as it now stands.”
Regarding damages, the INTA study recommends asking the European Court of Justice an opinion.
The ARTICLE 19 organisation calls ACTA’s damages “astronomical”.
The FFII gives simple examples which show ACTA’s damages are higher than EU law damages. For instance: A 2 terabyte hard disk can contain 540.000 songs.
Someone copies a hard disk full of songs. Based on retail price, say 1 euro per song, the rights holder can claim 540.000 euro under ACTA art 9. For details, see:
Myth 3: ACTA moves the balance of rights towards IP right-holders. ACTA eliminates safeguards and exceptions existing under international law.
Commission: “Quite to the contrary, ACTA is drafted in very flexible terms and contains the necessary safeguards to allow its Parties to strike an appropriate balance between all rights and interests involved, in line with their economic, political and social objectives, as well as with their legal traditions. All safeguards and exceptions under EU law or under the TRIPs Agreement remain fully preserved.”
ACTA contains extreme measures, which can not be repaired by a general reference to proportionality. See also below.
Myth 4:ACTA will lead to limitations on fundamental rights or civil liberties (e.g. controls of laptops of air passengers at borders, monitoring of internet traffic, etc.).
Commission: “There is no provision in ACTA that substantiates this claim. ACTA is about tackling large scale illegal activity, often pursued by criminal organisations. ”
Simply not true. The civil and criminal measures do not have a minimum threshold.
Regarding criminal measures, the WTO dispute settlement panel definition of commercial scale (US versus China case) leaves countries policy space to find a proportional solution. ACTA deliberately overturns this definition. ACTA removes the scale element from the definition of the crime. ACTA does not have a public interest exemption either. As a result, ACTA criminalises everyday computer use. ACTA can be used to criminalise newspapers and websites revealing a document, office workers forwarding a file, people making a private copy and whistle-blowers revealing documents in the public interest. ACTA criminalises almost everyone with a computer – who never forwarded an email?
ACTA also criminalises aiding and abetting, which puts pressure on Internet Service Providers, who may decide to pre-emptively censor Internet communications.
Commission: “It is not about limiting civil liberties or harassing consumers.
The respect for fundamental rights such as, privacy, freedom of expression and data protection is expressly mentioned as a basic principle of the agreement.”
To establish whether ACTA violates fundamental rights, fair balance tests are needed. The European Parliament’s legal service does not provide any fair balance test. The 61 pages Douwe Korff & Ian Brown opinion provides many such tests. These tests show ACTA is manifestly incompatible with fundamental rights. Just providing a general reference to fundamental rights is not enough.
The ARTICLE 19 organisation “finds that ACTA fundamentally flawed from a freedom of expression and information perspective. If enacted, it will greatly endanger the free-flow of information and the free exchange of ideas, particularly on the internet.”
Korff & Brown conclude: “Overall, ACTA tilts the balance of IPR protection manifestly unfairly towards one group of beneficiaries of the right to property, IP right holders, and unfairly against others, equally disproportionally interferes with a range of other fundamental rights, and provides for (or allows for) the determination of such rights in procedures that fail to allow for the taking into account of the different, competing interests, but rather, stack all the weight at one end. This makes the entire Agreement, in our opinion, incompatible with fundamental European human rights instruments and -standards.”
Commission: “There is a provision in ACTA specifically exempting travellers from checks if the infringing goods are of a non-commercial nature and not part of large scale trafficking ”
In the border measures section, ACTA contains this exception: “small quantities of goods of a non-commercial nature contained in travellers’personal luggage”. But it also contains this inclusion: “Each Party shall include in the application of this Section goods of a commercial nature sent in small consignments.”
So they can still search your mail and destroy it. And they can block your international emails and Internet connections containing digital goods of a commercial nature sent in small consignments?
Myth 5: ACTA threatens the legitimate trade in generic medicines and global public health.
Commission: “There are no provisions in ACTA that could directly or indirectly affect the legitimate trade in generic medicines or, more broadly, global public health.”
Not true, see:
Sean Flynn with Bijan Madhani, ACTA and Access to Medicines
Oxfam Statement regarding ACTA and Public Health
Commission: “On the contrary, ACTA contains unequivocal language safeguarding access to health and expressly refers to the Doha Declaration on intellectual property and public health.”
The ACTA text only mentions the Doha Declaration once in the non binding ACTA preamble.
The combination of heightened measures with a non binding reference to the Doha Declaration, and DG-Trade and the US Trade Representative undermining the Doha Declaration in other fora does not provide sufficient safeguards for access to medicine.
Commission: “ACTA also excludes patents from criminal and border measures.”
True. And Parties may exclude them from the civil measures, but including them is the default in the civil section. And the Commission wants to include them.
Imagine the astronomical damages and the intrusive injunctions and provisional measures as tools for patent trolls.
Myth 6: ACTA will lead to the introduction of a ’3 strikes’ system for internet infringements, or to demands for internet service providers (ISPs), to monitor or filter the data they transmit.
Commission: “ACTA does not provide for a “3 strikes” or a “graduated response”system to infringements over the internet. Neither does it oblige ISPs to monitor or filter content of their users.”
ACTA’s criminal and heightened civil measures will apply to the digital environment as well. This will put pressure on Internet Service Providers, who may decide to pre-emptively censor Internet communications.
And ACTA contains the obligation to endeavour to promote cooperative efforts within the business community. While the text does mention fundamental rights, the business community can not guarantee fundamental rights. ACTA incites privatised enforcement outside the rule of law.
This is not compatible with article 21 TEU, the Union’s action on the international scene shall be guided by the principles of democracy and the rule of law, the universality and indivisibility of human rights and fundamental freedoms (…).
Commission: “ACTA is fully in line with the relevant EU legislation, in force since 2000 (E-commerce Directive).” But not in line with enforcement legislation, as we saw above.
Myth 7: ACTA’s provisions on criminal enforcement of intellectual property rights require additional legislation at EU level.
Commission: “There is no EU legislation on criminal measures. The criminal enforcement provisions of ACTA do not require additional legislation at EU level. A very limited number of Member States may need to adapt their own legislation related to criminal enforcement to comply with the commitments they undertook (ACTA is a mixed EU/Member States’ competence Agreement).
This has been confirmed in very clear terms by the Opinion of the Legal Service of the European Parliament of 5 October 2011.”
There we have the Parliament’s poodle again, which consistently overlooked all known issues. The problem with the legal service is that it is the Parliament’s lawyer. Politicians want to hear: there are no legal problems, you can take a decision on political grounds. So the legal service is trained in making legal problems disappear. Everybody happy? No, because by making legal problems disappear, the legal service also influences the political process. The legal service betrays the public, the truth, fundamental rights, patients world wide. And they made the Internet angry. They have compromised the Parliament’s good name for ever. Let’s rename the legal service to: Judas.
While it is true that the EU will not ratify the criminal measures, the EU member states will. So it is not helpful that the legal service fails to see ACTA removes the scale element from the definition of the crime. The legal service fails to notice ACTA criminalises everyday computer use.
Myth 8: The EU will impose the provisions of ACTA to third countries through incorporation of its provisions in free trade agreements.
Commission: “There is no intention to do so, and this has not been proposed in bilateral trade negotiations conducted by the EU”
Michael Geist: Beyond ACTA: Proposed EU – Canada Trade Agreement Intellectual Property Chapter Leaks
Myth 9: ACTA should only cover counterfeiting (trademark infringements) of goods. It should not cover copyright infringements, particularly on internet.
Commission: “Providing for enforcement of a broad range of IPR infringements is necessary, since a large spectrum of EU economic operators rely on economic activities that need intellectual property protection (e.g. geographical indications for high quality agricultural products, designs for fashion and design, copyright for the entertainment and culture sectors or patents for innovative industries).
This being said, ACTA steered away from a one-size-fits all approach and contains several exceptions to avoid that legitimate goals such as access to medicines are incidentally affected by provisions destined to prevent illegal traffics.”
ACTA will negatively impact innovation, competition, development, fair trade, start up companies, mass digitization projects, access to medicines and Internet governance. ACTA threatens the rule of law and fundamental rights.
Myth 10: ACTA was negotiated as a self-standing agreement to avoid being negotiated at a inclusive multilateral forum, such as the World Trade Organisation (WTO) or the World Intellectual Property Organisation (WIPO).
Commission: “The Commission would have preferred to address IPR enforcement problems in the WTO or in WIPO, and made many proposals to that effect. The point is that certain other Members of these organisations opposed any enforcement debate there.”
The world faces major challenges: access to medicine, diffusion of green technology needed to fight climate change, and a balanced Internet governance.
While flexibility is essential to solve these major issues, the Anti- Counterfeiting Trade Agreement (ACTA) codifies draconian measures. ACTA’s predecessor, the 1994 WTO TRIPS agreement, still hampers fair trade, even in life saving generic medicines. The EU should have chosen to further balance, in the World Trade Organization, the TRIPS agreement.
It is not too late. ACTA goes beyond US law, the US will not ratify ACTA. The Mexican Senate urged the government not to sign ACTA. India, Brazil and China have turned against ACTA. The EU can and should reject ACTA, and seek a balanced solution in WTO and WIPO.
10 Myths about ACTA: