European Greens/EFA enter the technical voodoo game

The MEPs from the Green Group in the European Parliament ask crucial technical questions about the Anti-Counterfeiting Trade Agreement as “priority questions”. These questions address the tip of an iceberg concerning technical issues with the ACTA, there is much more that can be raised. Any Member of the European Parliament is entitled to ask written and oral questions to the institutions which have to be answered. MEPs are more restricted towards filing priority questions which have to be answered on short notice by the institutions.

SKA KELLER: ACTA – competence to negotiate criminal measures

The Criminal Enforcement section of ACTA concern provisions on criminal procedures, criminal liability, criminal offenses, criminal enforcement and penalties.

- Can the Commission explain on which legal basis these criminal measures are negotiated?

- Considering that the provisions on aiding and abetting concern the general structure of national legal systems of criminal law, does the Commission consider that the provisions on aiding and abetting are compatible with its negotiation mandate?

ORIOL JUNQUERAS: ACTA – minimum rules proved essential?

In 2007, the Commission launched a questionnaire addressed to the Member States in order to conduct a study [1] to verify if Member States consider criminal sanctions essential to ensure the effective implementation of community law in the area of intellectual property rights, as required by Art 83.2 TFEU.

- How will the Commission take into account the answers to the questionnaire in the context of the ACTA negotiations?

[1] See Reply Commission

INDREK TARAND: ACTA – proportionality principle with regards to copyright crimes

Considering when proper account is taken of the proportionality principle, harmonisation of criminal penalties can only be justified when all the following elements are present:
Identity with the infringed object of protection
Commercial activity with an intention to earn a profit
Intent with regard to the existence of the infringed right

- Does the Commission consider the definition of copyright crimes in ACTA meet the requirements of the proportionality principle as formulated above?

JAN PHILIPP ALBRECHT: ACTA – legality principle

Considering that ACTA art 2.14.1 contains a definition of commercial scale: “For the purposes of this section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage” and considering that ACTA footnote 9 says: “Each Party shall treat wilful importation or exportation of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties under this Article. A Party may comply with its obligation relating to exportation and importation of pirated copyright or counterfeit trademark goods by providing for distribution, sale or offer for sale of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties”;

- Has the Commission assessed the compatibility of the definition of commercial scale in ACTA with the requirements of the legality principle of criminal law?

- Does the Commission deem it appropriate to extend criminal responsibility in a footnote as is done in footnote 9?

CARL SCHLYTER: ACTA – injunction powers beyond EU Acquis

In the Civil Enforcement Section, ACTA allows judicial authorities to issue an order (injunction) against a party, or a third party, to “prevent infringing goods from entering into the channels of commerce” (see Article 2.x.1 – Injunctions). This injunction power is considerably different from the EU Acquis[1] which permits injunctions “to prevent any imminent infringement”, in addition, the third parties need to be involved in the infringement (“against an intermediary whose services are being used”). The ACTA text essentially eliminates the thresholds of the injunction powers in the EU Acquis.

- Considering that the EU Aquis has, through laying down the thresholds for injunctions, struck a delicate balance between enforcement and safeguards of fundamental rights, how will Commission ensure these safeguards in the current EU Aquis are maintained?

- How will the Commission safeguard the thresholds currently in the EU Acquis?
[1] 2004/48/EC, Intellectual Property Rights Enforcement Directive, Article 9

SANDRINE BÉLIER: ACTA – preventing infringements from occurring

Article 2.5 says: “Each Party shall provide that its judicial authorities shall have the authority to order prompt and effective provisional measures: (a) against a party, or where appropriate, against a third party over whom the relevant judicial authority exercises jurisdiction, to prevent an infringement of any intellectual property rights from occurring, and in particular to prevent infringing goods from entering into the channels of commerce”;

- What does exactly mean “prevent from occuring” within the digital environment?

- Would it imply the ISPs must implement technical measures to prevent their customers from committing infringements?

- If so, how can the Commission guarantee that the implementation of such technical measures will be compatible with the respect of privacy, data protection and fundamental rights?

EVA LICHTENBERGER: Anti-Counterfeiting Trade Agreement (ACTA)

Directive 91/250/EEC (the “Software Directive”) and Directive 2001/29/EC (the “Information Society Directive”) clearly and explicitly distinguish between anti-circumvention provisions for computer programs, which expressly preserve the Software Directive’s reverse engineering provisions, and anti-circumvention provisions for other copyrighted works. Article 2.18 paragraphs 5 and 8 of the 2 October 2010 of the Anti-Counterfeiting Trade Agreement (“ACTA”) appear to provide sufficient basis for the European Commission to preserve the EU Aquis, in accordance with the European Commission’s repeated and explicit promise, and in particular to safeguard the Software Directive’s special regime preserving reverse engineering and circumvention.

- Considering the above, and in light of the critical importance of the reverse engineering regime to fundamental EU policies related to interoperability, competition and innovation, can the Commission explicitly confirm that the ACTA anti-circumvention provisions leave the Software Directive’s special regime of circumvention unaffected and preserve the Software Directive’s reverse engineering provisions, and in particular that ACTA would not require any changes to the anti-circumvention provisions of the Software Directive or Information Society Directive or the Member States’ laws implementing those provisions?

CHRISTIAN ENGSTRÖM: ACTA – corporative efforts

Article 2.18.3 of the proposed ACTA agreement says that “Each party shall endeavor to promote cooperative efforts within the business community to effectively address” copyright infringements in the digital environment. This text appears to mandate a form of cooperation such as extra-judicial ‘three-strikes’ mechanisms with users cut off the Internet as the result of an obligation (“shall”) on the Parties to “effectively address” infringements.

This wording does not respect the EP Resolution on ACTA of March 2010, which explicitly excludes such cooperative efforts.

Furthermore, it contradicts the Commission’s repeated statements that ‘three-strikes’ is not an outcome sought by the ACTA.

- How does the Commission justify the non-compliance with the EP Resolution on ACTA?

- How does the Commission foresee amending the text to explicitly exclude any interpretation able to introduce ‘three-strikes’ or similar regimes that the Commission has repeatedly said are not meant to be the subject of ACTA?

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