[ffii] FFII calls upon European Parliament to resolve uncertainties regarding ACTA

Ante ante at ffii.org
Tue May 24 09:25:13 CEST 2011


[ ACTA / Economy / Innovation ]
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FFII calls upon European Parliament to resolve uncertainties regarding ACTA
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Brussels, 24 May 2011 -- The European Parliament should decisively resolve 
uncertainties regarding ACTA (Anti-Counterfeiting Trade Agreement), according 
to an open letter to the Members of the European Parliament by the FFII 
(Foundation for a Free Information Infrastructure). The FFII urges the 
Parliament to seek an opinion of the European Court of Justice on the 
compatibility of ACTA with the EU Treaties, and to commission independent 
assessments of the effects ACTA will have on access to medicine, diffusion of 
green technologies needed to fight climate change, fundamental rights, 
innovation, small and medium sized companies and a fair balance of interests.

"We now know the devastating effects that IP ('intellectual property') 
enforcement may have on societies", the FFII says in the letter. A few years 
after the European Community ratified the 1994 WTO TRIPS agreement, the AIDS 
epidemic took millions of lives in Africa. Protected by TRIPS, pharmaceutical 
companies sold AIDS medicine in Africa for prices higher than in the US. They 
only served a very small part of the market. The death toll was very high. 
This was an unforeseen effect of TRIPS.

The FFII agrees with the "Hargreaves Review" — the UK government-commissioned 
study on the relationship between intellectual property and growth, that IP 
policy has to be based on evidence, rather than weight of lobbying.

Regarding piracy, the FFII refers in the letter to the Media Piracy in 
Emerging Economies report which shows that relative to local incomes in 
Brazil, Russia, or South Africa, the price of a CD, DVD, or copy of Microsoft 
Office is five to ten times higher than in the United States or Europe. 

FFII analyst Ante Wessels: "We see the same pattern as in the 90s in Africa, 
multinationals only serving a small part of the market. Some 90% of the people 
in emerging markets can only turn to illegal media copies. Under such 
circumstances, stronger enforcement can not solve the piracy problem. Yet, 
ACTA criminalises these people. Multinational media companies have asked the 
Parliament not to seek the opinion of the European Court of Justice on the 
compatibility of ACTA with the EU Treaties. For a marginal gain, the 
multinational media companies are willing to compromise the EU's fundamental 
principles and to exclude and criminalise some 90% of the people in emerging 
markets."

Regarding patents, the Hargreaves Review observes that given the pace of 
change in the digital world and the strongly sequential nature of innovation 
in computer programs, the problems arising from patent thickets in this 
environment are particularly severe and it is essential that changes do not 
worsen the situation. The FFII fully agrees, its members often report that 
patent minefields are an increasingly severe problem, especially in the 
software sector. The FFII's analysis shows ACTA's heightened measures against 
patent infringements will make things worse.

Prominent European academics found significant deviations from the current EU 
legislation and they have serious concerns on fundamental rights, data 
protection, and a fair balance of interests.

The European Commission denies that ACTA is incompatible with EU law, but 
according to the FFII, it appears that the Commission does not have any 
reasonable objections against the academics' Opinion.

Ante Wessels: "Even a partial scrutiny of the Commission's comments shows the 
Commission misrepresents ACTA, does not address points raised by the academics 
and even uses nonsensical reasoning. The Commission refused to commission 
independent impact assessments and gave a very weak response to the European 
Academics’ Opinion on ACTA. It never provided proof ACTA's criminal measures 
are essential. We believe the European Parliament now has to take 
responsibility."


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FFII letter to European Parliament
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Dear Members of the European Parliament,

We are writing to express our concerns with ACTA (Anti-Counterfeiting Trade 
Agreement). Whether the Parliament will ratify or reject ACTA, it will be a 
landmark decision. Yet, ACTA is still surrounded by uncertainties. We call 
upon you to decisively resolve these uncertainties. We urge the Parliament to 
seek an opinion of the European Court of Justice on the compatibility of ACTA 
with the EU Treaties, and to commission independent assessments of the effects 
ACTA will have on access to medicine, diffusion of green technologies needed to 
fight climate change, fundamental rights within and outside the Union, 
innovation, small and medium sized companies and a fair balance of interests.

Prior to ratifying the 1994 WTO TRIPS agreement (Agreement on Trade-Related 
Aspects of Intellectual Property Rights), the Commission asked the European 
Court of Justice whether TRIPS complied with the Treaties. The Court decided 
that the Community was not competent to ratify the criminal measures. 

A few years later, the AIDS epidemic took millions of lives in Africa. 
Protected by TRIPS, pharmaceutical companies sold AIDS medicine in Africa for 
prices higher than in the US. They only served a very small part of the 
market. The death toll was very high. This was an unforeseen effect of TRIPS. A 
what-if question comes to mind: if it would have been possible to foresee this 
effect, would the Community have ratified TRIPS?

We now know the devastating effects that IP ("intellectual property") 
enforcement may have on societies. With trial and error, the world learns to 
deal with TRIPS (for instance, the Doha Declaration on the TRIPS Agreement and 
Public Health, and the WIPO Development Agenda). At this point, ACTA is 
proposed. 

How to proceed? The "Hargreaves Review" — the UK government-commissioned study 
on the relationship between intellectual property and growth, indicates the 
direction. The Review urges the UK Government to ensure that in future, policy 
on Intellectual Property issues is constructed on the basis of evidence, 
rather than weight of lobbying. "On copyright issues, lobbying on behalf of 
rights owners has been more persuasive to Ministers than economic impact 
assessments." [1] We urge the EU to base its IP policy on evidence as well. 

Regarding piracy, the Hargreaves Review refers to the MPEE (Media Piracy in 
Emerging Economies) report. Relative to local incomes in Brazil, Russia, or 
South Africa, the MPEE report shows, the price of a CD, DVD, or copy of 
Microsoft Office is five to ten times higher than in the United States or Europe. 
Licit media goods are luxury items in most parts of the world, and licit media 
markets are correspondingly tiny. [2] 

We see the same pattern as in the 1990s in Africa, multinationals only serving 
a small part of the market. Some 90% of the people in emerging markets can 
only turn to illegal media copies. Under such circumstances, stronger 
enforcement can not solve the piracy problem. Yet, ACTA criminalises these 
people. Multinational media companies have asked the Parliament not to seek 
the opinion of the European Court of Justice on the compatibility of ACTA with 
the EU Treaties. For a marginal gain, the multinational media companies are 
willing to compromise the EU's fundamental principles and to exclude and 
criminalise some 90% of the people in emerging markets. The consequences of 
this aggressive approach are far-reaching, both within and outside the EU. 

Lobbying on behalf of rights owners has been persuasive to the Commission as 
well. The Commission refused to commission independent assessments of the 
effects ACTA will have on access to medicine and the diffusion of green 
technologies needed to fight climate change. Could ACTA be just as detrimental 
as TRIPS, or even worse? The Commission does not want to know. 

Regarding patents, the Hargreaves Review observes that given the pace of 
change in the digital world and the strongly sequential nature of innovation 
in computer programs, the problems arising from patent thickets in this 
environment are particularly severe and it is essential that changes do not 
worsen the situation. We fully agree, FFII members often report that patent 
minefields are an increasingly severe problem, especially in the software 
sector. Our analysis shows ACTA's heightened measures against patent 
infringements will make things worse. [3]

In January 2011, prominent European academics issued an "Opinion of European 
Academics on ACTA". The academics invite the European institutions, in 
particular the European Parliament, and the national legislators and 
governments to withhold consent of ACTA, "as long as significant deviations 
from the EU acquis or serious concerns on fundamental rights, data protection, 
and a fair balance of interests are not properly addressed".

In April 2011, the European Commission’s services put on-line comments to the 
European Academics’ Opinion on ACTA. The Commission denies that ACTA is 
incompatible with EU law. It appears the Commission does not have any 
reasonable objections against the academics' Opinion. Even a partial scrutiny 
of the Commission's comments shows the Commission misrepresents ACTA, does not 
address points raised by the academics and even uses nonsensical reasoning. 
Regarding the border measures, an issue with consequences on access to 
medicine, the Commission actually agrees with the academics, while denying 
that. We invite you to take note of our analysis. [4] 

The Commission refused to commission independent assessments and gave a very 
weak response to the European Academics’ Opinion on ACTA. It never provided 
proof ACTA's criminal measures are essential. We believe the European 
Parliament now has to take responsibility.

We urge the Parliament to seek an opinion of the European Court of Justice on 
the compatibility of ACTA with the EU Treaties. Parliament does not have to 
wait with this, according to ECJ Opinion 1/09. This is an essential step, as 
it will clarify whether ACTA complies with the EU's fundamental principles. 

We also urge Parliament to commission independent assessments of the effects 
ACTA will have on access to medicine, diffusion of green technologies needed to 
fight climate change, fundamental rights within and outside the Union, 
innovation, small and medium sized companies and a fair balance of interests. 

Yours sincerely,

Ante Wessels
Foundation for a Free Information Infrastructure

[1] http://www.ipo.gov.uk/ipreview-finalreport.pdf

[2] http://piracy.ssrc.org/about-the-report/

[3] http://action.ffii.org/acta/Analysis

[4] http://acta.ffii.org/?p=598


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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 will 
contain new international norms for the enforcement of copyrights, trade mark 
rights, patents and other exclusive rights ("intellectual property rights" or 
IPR).


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Permanent Link
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Permanent link to this press release:
http://press.ffii.org/Press%20releases/FFII%20calls%20upon%20European%20Parliament%20to%20resolve%20uncertainties%20regarding%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.




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