EP legal service consistently overlooks known issues with ACTA ...

Today the FFII sent a letter to the European Parliament about the EP legal service?s opinion on ACTA. (pfd version, see also press release)

Dear Members of the European Parliament,

In the coming months the Parliament will have to decide whether to give consent to ACTA (Anti-Counterfeiting Trade Agreement) or not. In preparation, the INTA and JURI committees asked the Parliament?s legal service an opinion on ACTA.

We welcome the decision to release this opinion. We have compared the legal service?s opinion with multiple academic opinions on ACTA and some civil society analyses.

We found that many issues pointed out by academic opinions and the study commissioned by the INTA committee are not addressed by the legal service?s opinion.

The legal service fails to see major issues with damages, injunctions and provisional, border and criminal measures. The legal service consistently overlooks known issues. Taking the issues the legal service did not address into consideration, it is clear that ACTA goes beyond current EU law, the acquis.

The legal service underestimates problems with Internet governance and access to medicine. It fails to see ACTA is not compatible with fundamental rights, international agreements and the EU Treaties.

ACTA will negatively impact innovation, start up companies, mass digitization projects, access to medicines and Internet governance. ACTA threatens the rule of law and fundamental rights.

We call upon the Parliament to say no to ACTA.

Below we will present the main conclusions. Please find attached this letter as a pdf and the full analysis.

Yours sincerely,

Ante Wessels

Foundation for a Free Information Infrastructure

MAIN CONCLUSIONS

1. Compatibility with current EU law

Damages: The legal service overlooks that ACTA?s damages based on retail price lead to damages based on an imaginary gross revenue, which is way beyond actual loss suffered. This issue has been pointed out by NGOs, the European academics Opinion and the EP INTA study. In our analysis, we provide some simple examples which show that ACTA?s damages are much higher than EU law damages.

Border measures: Both the European Academics Opinion on ACTA and the EP INTA committee study had pointed out there is a serious issue with the condition ?not discriminate unjustifiably?. The Commission did not provide the justification to limit ACTA to EU law. While the legal service quotes article 13 ACTA, it leaves out this condition. Since DG-Trade and the US Trade Representative undermine the Doha Declaration in other fora, there is also a threat to access to medicine.

Injunctions and provisional measures: The legal service does not address the issues with injunctions and provisional measures, pointed out in multiple academic opinions.

Compatibility: Taking the issues the legal service did not address into consideration, it is clear that ACTA goes beyond current EU law, the acquis.

2. Criminal measures: 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. 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.

3. Internet: ACTA?s criminal and heightened civil measures will also apply to the digital environment. This will put pressure on Internet Service Providers, who may decide to pre-emptively censor Internet communications. ACTA incites privatised enforcement outside the rule of law.

4. Fundamental rights: To establish whether ACTA violates fundamental rights, fair balance tests are needed. The 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.?

5. Public health: The legal service mentions references to the TRIPS agreement and the Doha Declaration in the ACTA text. But the combination of heightened measures with a non binding reference to the Doha Declaration, and undermining the Doha Declaration in other fora does not provide sufficient safeguards for access to medicine.

6. International agreements: The legal service does not address the global pricing problem and the right to take part in cultural life. ACTA is not compatible with article 15 of the UN International Covenant on Economic, Social and Cultural Rights (ICESCR),

The ARTICLE 19 organisation also notes issues with Article 15 of the ICESCR, and with articles 17 and 19 of the UN International Covenant on Civil and Political Rights (ICCPR).

7. EU Treaties: ACTA is not compatible with article 21 Treaty on European Union (TEU): ?The Union?s action on the international scene shall be guided by the principles (?): democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms (?)?

Nor is ACTA compatible with articles 3.3, 3.5 and 5 Treaty on European Union.

Source: http://acta.ffii.org/?p=1057

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