[ffii] EP legal service consistently overlooks known issues with ACTA

Mon Jan 23 10:11:31 CET 2012

[ ACTA / Economy / Innovation ]
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EP legal service consistently overlooks known issues with ACTA
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Brussels, 23 January 2012 -- The European Parliament's legal service 
consistently overlooks known issues with the Anti-Counterfeiting Trade 
Agreement (ACTA), according to the Foundation for a Free Information 
Infrastructure (FFII). 

In the coming months the European Parliament will have to decide whether to 
give consent to ACTA or not. In preparation, the Parliament's International 
Trade and Legal Affairs committees asked the Parliament's legal service an 
opinion on ACTA. The FFII compared the legal service's opinion with multiple 
academic opinions on ACTA and some civil society analyses. 

The FFII found that many issues pointed out by academic opinions and the study 
commissioned by the Parliament's International Trade committee are not 
addressed by the legal service's opinion. 

In a letter to the Members of the European Parliament, the FFII writes: "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."

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

FFII analyst Ante Wessels: "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."

In the letter, the FFII asks the European Parliament to say no to ACTA. 

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FFII letter to the European Parliament
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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.

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Background information
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Behind closed doors, the European Union, United States, Japan and other trade 
partners negotiated the Anti-Counterfeiting Trade Agreement. ACTA is a 
multilateral agreement which proposes international standards for enforcement 
of copyright, patents and other exclusive rights. In the coming months, the 
European Parliament will have to decide whether to give consent to the 
agreement or not.

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Links
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FFII note on the Legal Service’s Opinion on ACTA
http://acta.ffii.org/?p=992

General FFII ACTA analysis:
http://action.ffii.org/acta/Analysis

FFII ACTA blog:
http://acta.ffii.org/

Permanent link to this press release:
http://press.ffii.org/Press%20releases/EP%20legal%20service%20consistently%20overlooks%20known%20issues%20with%20ACTA

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Contact
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Ante Wessels 
ante (at) ffii.org 
+31 6 100 99 063 

FFII Office Berlin 
Malmöer Str. 6 
D-10439 Berlin 
Fon: +49-30-41722597 
Fax Service: +49-721-509663769
Email: office (at) ffii.org
http://www.ffii.org/ 

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About FFII
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The FFII is a not-for-profit association active in twenty European countries, 
dedicated to the development of information goods for the public benefit, based 
on copyright, free competition, open standards. More than 1000 members, 3,500 
companies and 100,000 supporters have entrusted the FFII to act as their voice 
in public policy questions concerning exclusion rights (intellectual property) 
in data processing.