[ffii] FFII urges EP Civil Liberties Committee to formulate opinion on ACTA

Ante ante at ffii.org
Fri Oct 14 10:16:16 CEST 2011


[ ACTA / Economy / Innovation ]
=====================================================================
FFII urges EP Civil Liberties Committee to formulate opinion on ACTA
=====================================================================

Brussels, 14 October 2011 -- In an open letter to the members of the European 
Parliament Civil Liberties Committee, the FFII (Foundation for a Free 
Information Infrastructure) urges them to formulate an opinion on ACTA (Anti-
Counterfeiting Trade Agreement).

ACTA is a multilateral agreement which proposes international standards for 
enforcement of intellectual property rights. According to the FFII, research 
has shown serious fundamental rights issues.

A group of prominent European academics published an opinion on ACTA. They 
conclude that certain ACTA provisions are not entirely compatible with EU law 
and will directly or indirectly require additional action on the EU level. 
They invite "the European institutions, in particular the European Parliament, 
and the national legislators and governments, to carefully consider the above 
mentioned points and, 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, to withhold consent."

A European Parliament International Trade Committee commissioned study 
acknowledges deviations from EU law. The study concludes: "There does not 
therefore appear to be any immediate benefit from ACTA for EU citizens".

The European Parliament Greens / EFA group commissioned a study on the 
compatibility of ACTA with the European Convention on Human Rights & the EU 
Charter of Fundamental Rights. This study was written by Professor Douwe Korff, 
London Metropolitan University, and Ian Brown, Senior Research Fellow, Oxford 
Internet Institute, University of Oxford, both fundamental rights experts. In 
their opinion, ACTA is incompatible with fundamental European human rights 
instruments and standards.

The FFII believes that if after careful considerations doubts still exist, the 
European Parliament should ask the European Court of Justice an opinion on the 
delicate issue of ACTA's compatibility with fundamental European human rights 
instruments and standards. 


=====================================================================
Open letter to Civil Liberties Committee
=====================================================================

Dear Members of the Civil Liberties Committee,

In the coming months, the Parliament will have to take a decision on whether 
to give consent to ACTA (Anti-Counterfeiting Trade Agreement). Research has 
shown serious fundamental rights issues. We call upon you to formulate an 
opinion on ACTA. 

A group of prominent European academics published an opinion on ACTA. They 
conclude that certain ACTA provisions are not entirely compatible with EU law 
and will directly or indirectly require additional action on the EU level. 
They invite "the European institutions, in particular the European Parliament, 
and the national legislators and governments, to carefully consider the above 
mentioned points and, 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, to withhold consent." [1]

An INTA Committee commissioned study acknowledges deviations from EU law. The 
study concludes: "There does not therefore appear to be any immediate benefit 
from ACTA for EU citizens". [2]

The Greens / EFA group commissioned two studies, on ACTA and Access to 
Medicines [3] and on the compatibility of ACTA with the European Convention on 
Human Rights & the EU Charter of Fundamental Rights [4]. The second study was 
written by Professor Douwe Korff, London Metropolitan University, and Ian 
Brown, Senior Research Fellow, Oxford Internet Institute, University of 
Oxford, both fundamental rights experts. In their opinion, ACTA is 
incompatible with fundamental European human rights instruments and standards. 
Below we attach the Summary & conclusions of this study.

If after careful considerations doubts still exist, we believe Parliament 
should ask the European Court of Justice an opinion on the delicate issue of 
ACTA's compatibility with fundamental European human rights instruments and 
standards. Only the Court may decisively resolve the uncertainties.

Yours sincerely,

Ante Wessels 
Foundation for a Free Information Infrastructure


Attachment

SUMMARY & CONCLUSIONS

ACTA was negotiated in unwarranted secrecy, without adequate input from civil 
society or parliamentarians, but in close cooperation with major IP right 
holders. Not surprisingly, this resulted in a text that gives disproportionate 
protection to big business; fails to level the playing field between developed 
and developing nations in international trade relations; hampers innovation 
(especially by SMEs); fails to promote grassroots culture; and could impede 
the dissemination of knowledge for people across the world (and access to 
health care and generic medicines).

Human rights were effective ignored, apart from the inclusion in the Agreement 
of vague and ineffective “without prejudice” clauses that fail to redress the 
balance, and are little more than fig-leaves. The inclusion of a detailed 
provision on the need to respect human rights in the protection of IPR, on the 
lines of the “138 Amendment” to Directive 2002/21/EC, was rejected as “not 
needed”.

This was wrong. Our analysis shows that ACTA, as currently drafted, seriously 
threatens fundamental rights in the EU and in other countries, at various 
levels. Specifically:

THE RIGHT TO FREEDOM OF EXPRESSION AND INFORMATION:

Re Application of ACTA to trivial or small-scale, not-for-profit technical 
infringements of IP rights, and to the dissemination of IP-protected 
information without the agreement of the right holder where this is justified 
on higher public interest grounds:

Article 23 ACTA requires State parties to lower the criminal threshold for IPR 
infringements, and to widen the scope of the criminal offences, without a de 
minimis exception;

Without such an exception and/or similar exceptions on the lines of the U.S. 
“fair use” and “fair comment” rules, IPR enforcement will disproportionately 
restrict the freedom to seek, receive and impart information and ideas;

Since a de minimis exception can be seen as a limitation on procedural matters 
rather than on the substance of IP rights, this is not remedied by the fact 
that ACTA allows States to retain substantive exceptions to IP law;

In our opinion, an explicit de minimis rule and an explicit public interest 
defence are the minimum that are required to bring Article 23 in accordance 
with the European Convention on Human Rights (ECHR) and the EU Charter of 
Fundamental Rights (CFR).

Re Application of ACTA to evasion of Digital Rights Management systems:

ACTA too easily assumes that right holders’ rights always trump user rights, 
that right holders can impose whatever kinds of DRM restrictions they like, 
and that these are always lawful in terms of contract- and consumer law, no 
matter how draconian.

In our opinion, in specific contexts, this will not be right, and this approach 
therefore unduly and disproportionally restricts access to information, or the 
free dissemination of information, in violation of Article 10 ECHR and Article 
11 CFR.

Re “Three strikes” and extended ISP liability:

the revised, final text of Article 27.1 – 3. ACTA no longer requires States to 
adopt the kind of draconian measures – excessive ISP liability, “three strike” 
rules, etc. – that were clearly originally in the minds of the drafters, and 
that the European Data Protection Superviser (EDPS) has shown to be clearly 
incompatible with European human rights and data protection law;

However, it still suffers from some of the same defects as the “criminal 
enforcement” provision mentioned above. Article 27 is still excessively vague; 
it encourages non-EU States to adopt such human rights-unfriendly measures in 
support of mainly U.S. and EU corporations, who could not rely on such 
measures in their own regions; and it could still be misread or misconstrued 
by EU States to adopt such measures.

In our opinion, without clear stipulations that require States that sign up to 
the Agreement not to allow private-sector-imposed “three strike” rules and not 
to impose excessive ISP liability in respect of IPR infringements, ACTA fails 
to ensure that it will be applied (by EU and non-EU States) in accordance with 
European and international human rights standards.

THE RIGHT TO PROTECTION OF PERSONAL DATA:

Articles 11 and 27(4) allow for the following:

the surreptitious monitoring of the Internet use of millions of individuals 
without any concrete suspicion of illegality, and the systematic recording and 
analyses of information on their Internet use;

the disclosure of the information gleaned from such surveillance to right 
holders, even though it may be wildly unreliable as an indicator of 
illegality, without any real safeguards to ensure that only information is 
disclosed which seriously suggests widespread infringement by identified 
individuals;

on the basis of completely unclear standards (essentially, mere claims by 
right holders);

by judicial and “other” authorities, i.e. also by authorities that are neither 
independent nor impartial in these respects;

across borders, including from EU Member States with strict data protection 
laws to non-EU Member States with “inadequate” data protection laws (or no 
data protection laws at all) ; and

in proceedings to which the individuals do not have access, and in which they 
are not heard (inaudita altera parte).

The above-mentioned suspicionless monitoring and disclosures of unreliable but 
sensitive personal data are incompatible with European human rights and data 
protection law, except under very stringent conditions, as outlined in our 
Opinion with reference to the Opinion of the EDPS, which include:

limiting such monitoring to “clear” cases of “major IPR infringements”, and 
even then only subject to a “prior check” by the relevant national data 
protection authority;

limiting transborder disclosures to right holders and law enforcement agencies 
in non-EU countries that ensure “adequate” protection of the received data, 
but in either case again only subject to such a “prior check”;

imposing serious checks on the validity of non-EU personal data disclosure 
orders, and on assurances of limiting the use of the data by the non-EU 
recipient to the purpose of the disclosure (which is not properly ensured by 
ACTA, in spite of phrases suggesting this).

In our opinion, the absence of such stringent conditions in ACTA means that 
the Agreement in these respects is incompatible with the ECHR, the CFR, and 
European data protection rules.

FAIR TRIAL/DUE PROCESS ISSUES RELATED TO OTHER FUNDAMENTAL RIGHTS:

Re Criminal law enforcement of IPR under ACTA:

In our opinion, ACTA, by not including a de minimis exception to its 
compulsory and draconian enforcement regime, fails to ensure adequate 
protection of the right to freedom to obtain and disseminate information, the 
right to freedom from unreasonable search and arrest, the right to 
inviolability of the home, and the right to the peaceful enjoyment of one’s 
possessions, and thus violates those rights.

Re Civil-law enforcement of IPR under ACTA (including injunctions, provisional 
measures, and the awarding of damages):

In our opinion, without clear provisions stressing that injunctions should be 
the exception, and inaudita proceedings the high exception, and that for both, 
there must be strong counterbalancing safeguards to preserve the “equality of 
arms” in IPR enforcement proceedings, ACTA is incompatible with the “fair 
trial” guarantees in the ECHR and the CFR.

Re “Privatisation” of IPR law under ACTA

Rather than contributing to the upholding of freedom of expression and due 
process rights by the dominant, private-sector players on the Internet, ACTA 
erodes the development of the Rule of Law in that realm. It encourages the 
regulation of human rights-sensitive matters by private entities, outside the 
formal frameworks, and without ensuring compliance with “off-line” human rights 
standards.

This “privatisation” of the IPR regime therefore, in effect, deprives 
individuals from their right to have crucial issues of Internet freedom 
properly adjudicated in proceedings that meet all the requirements of Article 
6 ECHR/Article 47 CFR.

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. It equally disproportionately interferes with a range 
of other fundamental rights, and provides 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.

Douwe Korff     &          Ian Brown

Cambridge/London          Oxford

8 October 2011

(The study is issued under a CC-BY-SA License)


[1] Opinion European Academics on ACTA: 
http://www.iri.uni-hannover.de/acta-1668.html

[2] EP INTA study 
http://acta.ffii.org/?p=681

[3] ACTA and Access to Medicines 
http://rfc.act-on-acta.eu/access-to-medicine

[4] Opinion on the compatibility of ACTA with the European Convention on Human 
Rights & the EU Charter of Fundamental Rights
http://rfc.act-on-acta.eu/fundamental-rights


=====================================================================
Links
=====================================================================

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

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

Permanent link to this press release:
http://press.ffii.org/Press%20releases/FFII%20urges%20EP%20Civil%20Liberties%20Committee%20to%20formulate%20opinion%20on%20ACTA


=====================================================================
Contact
=====================================================================

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/ 
 

=====================================================================
About FFII
=====================================================================

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.



More information about the News mailing list