FFII note on the Legal Service’s Opinion on ACTA

We welcome the decision to release the European Parliament legal service’s opinion on ACTA (Anti-Counterfeiting Trade Agreement). We have compared the legal service’s opinion with multiple academic opinions on ACTA and some civil society analyses.

(pdf version)

1. Conclusion

We found that many issues pointed out by academic opinions and the study commissioned by the EP International Trade committee (INTA) 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.

1.1 Compatibility with EU law

Regarding 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. We provide some simple examples which show that ACTA’s damages are much higher than EU law damages.

Regarding 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 the 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.

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

The legal service does not mention dispute resolution panels, while such external panels may be a serious threat to a favorable interpretation of ACTA.

1.2 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. ACTA also criminalises aiding and abetting, which puts pressure on Internet Service Providers, who may decide to pre-emptively censor Internet communications.

1.3 Internet

ACTA’s heightened measures will apply to the digital environment as well. This will put pressure on Internet Service Providers, who may decide to pre-emptively censor Internet communications.

The legal service does not mention the obligation in ACTA art 27.3 to endeavour to promote cooperative efforts within the business community. ACTA incites privatised enforcement outside the rule of law.

1.4 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.”

1.5 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).

1.6. 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.

1.7 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.

1.8 Policy space

ACTA will foreclose future legislative improvements in response to changes in technology or policy. EU law is relatively new and under review, the Union needs to retain policy space.

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2. Analysis

2.1. Compatibility with EU law

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

2.1.1 Damages

2.1.1.1 Damages and current EU law

Paragraph 26 (page 14) concludes the compulsory aspect is similar. But ACTA introduces damages based on retail price. This leads 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 and the INTA study. Basically, ACTA combines two leverage tricks, from profits to gross revenues, and from actual to imaginary losses.

We provide three simple examples which show that ACTA’s damages are much higher than EU law damages. Actually, ACTA’s damages upset millennia of legal tradition.

A. A 2 terabyte hard disk can contain 540.000 songs. Someone copies a hard disk full of songs. Based on retail price, say 1 euro per song, the rights holder can claim 540.000 euro under ACTA art 9.

Art 9: “Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to order the infringer who, knowingly or with reasonable grounds to know, engaged in infringing activity to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement. In determining the amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.”

Art 9 first speaks of adequate damages. Then in the second sentence, ACTA mentions “any legitimate measure”, and then not only mentions lost profits, but also “the value of the infringed goods or services measured by the market price, or the suggested retail price.”

Under ACTA, the rights holder can claim 540.000 euro. And the judicial authorities shall have the authority to consider this. This is clearly an enormous threat for a consumer, organisation or company.

Under current EU law this would not be possible. Under current EU law, damages are based on actual loss suffered, including lost profits. Profits are always less than gross revenue, and certainly less than imaginary gross revenues.

Someone may not buy music often, but after copying a disk and hearing the music, may buy more music, visit concerts more often. The actual lost profit is zero (and even negative). This is not a outlandish example, as multiple studies show the biggest downloaders are also the biggest buyers.

B. There are libraries full of old magazines, etc. They have no real commercial value any more. Mass digitization projects bring them to a new public. Yet, under ACTA, the retail price damages may lead to a claim of millions or billions euro. Such claims can be awarded. The threat of such a claim has a chilling effect.

C. In a knowledge society, exceptions and limitations on copyright create important opportunities for new companies (for instance Google, etc). But start ups can face claims of millions or billions euro under ACTA.

2.1.1.2 Damages and fundamental rights

Above we saw that ACTA’s damages are extremely high, combine two leverage tricks. The ARTICLE 19 organisation notes: “Calculating damages in this manner, particularly in the context of peer-to-peer sharing, will lead to astronomic compensation awards that are grossly disproportionate to the actual harm suffered and the seriousness of the infringing conduct.”

Douwe Korff & Ian Brown note: “Similar considerations apply in respect of the mandatory awarding of disproportionate damages for IPR infringements against users to right holders. The EU academics show beyond doubt that ACTA in this respect too departs significantly from accepted assessments. Of course, money taken from defendants, and handed to right holders constitutes an interference with the formers’ property rights – indeed, a deprivation of their property. If in this ACTA fails to strike a “fair balance” then, as we have already noted, that will ipso facto amount to a violation of the defendants’ property rights.

Under the ECHR, the assessment of the level of damages in civil proceedings is very largely left to the States: the European Court of Human Rights will only very marginally assess the compatibility of such an assessment with the Convention.

However, if the rules underpinning that assessment are manifestly skewed against one party, this changes: in such a case, the Court would find a violation of the right to property.

In our opinion, here too ACTA is deficient: without express clarification to the effect that damages awarded to right holders must be a reasonable reflection of actual loss, equitably assessed by a court (rather than an exaggerated assessment based on an unchallengeable but rigged formula), the Agreement violates both the right to property and the right to a fair (civil) trial of the defendants.”

2.1.2. Border measures

Paragraph 22 (page 14) legal service’s opinion makes clear ACTA has a broader scope.

Paragraph 23 “However”, cites ACTA art 13, which consists of just one sentence. The opinion only cites the first half of this sentence. The legal service leaves out a condition: “for effective border enforcement of intellectual property rights, a Party should do so in a manner that does not discriminate unjustifiably between intellectual property rights and that avoids the creation of barriers to legitimate trade.”

Civil society, 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”, in the second part of the sentence. Without justification, the EU can not limit ACTA’s border measures to current EU law.

EP INTA study: It may be possible to argue that Article 13 provides a way to exclude certain kinds of infringements from the application of border measures, as the Commission does,104 but the difficulty will be establishing what constitutes a justifiable discrimination between types of intellectual property as required by the article. In particular, where the Commission seems to be of the view that such extension is optional under ACTA, the text of Article 13 is clear that unless ‘justified’ border measures cannot exclude all trademark infringements. In the context of the history of exceptions and exclusions allowable or justifiable under the TRIPS Agreement, these may be restricted to those that meet the criteria of Article 8.1 TRIPS, regarding public health and protection of the environment. The Commission has yet to provide what its argument would be for justifiably reducing the scope of application of border measures only to counterfeit trademark goods.”

Without a justification, the EU can not limit ACTA’s border measures to EU law. There still is no such justification. Border officials will have to deal with subtle and unclear infringements.

Regarding access to medicine, the Doha Declaration may provide a justification. But, it is important to note that the latest US and EU interpretation of the Doha Declaration is more limited than the original WTO interpretation.

James Love: “So, when the NCD discussion began at the UN, the Obama White House and DG-Trade saw this as an opportunity to try, again, to make the case that the 2001 Doha agreement, and the 2003 TRIPS waiver for exports, do not apply to NCDs. Given the timing of the decision, this puts at risk the current understanding that the Doha Declaration applies to everything.” (NCD: Non-communicable disease) (KEI-1267)

Since DG-Trade and the US Trade Representative undermine the Doha Declaration in other fora, ACTA’s extended border measures are also a threat to access to medicine.

Paragraph 24 legal service’s opinion mentions interpretation by European courts. The outcome will be unsure. The legal service does acknowledge this in its analysis. The legal service only uses “subject to interpretation” in its conclusions, which is weaker.

Furthermore, and the legal service does this throughout the document, the legal service mentions courts looking at it, but does not mention dispute resolution panels. Such an external panel may be a serious threat to a favorable interpretation. In such a procedure it may not be helpful the Commission wanted a broad scope during the negotiations and undermines the Doha Declaration.

2.1.3. Injunctions and provisional measures

2.1.3.1. Injunctions, provisional measures and current EU law

The legal service does not address issues with injunctions and provisional measures. There are at least three issues.

A. Both the European academics and the EP INTA study noted that ACTA does not contain an option to order pecuniary compensation to be paid to the injured party instead of applying injunctions. Academics: “It seems that this option would be lost or at least called into question if art. 8.1 ACTA were enacted in its present form.” INTA study: “It seems that this option would be lost or at least called into question if art. 8.1 ACTA were enacted in its present form.”

B. The European academics point out ACTA contains provisional measures inaudita altera parte, but does not at the same time take up the procedural guarantees which have been introduced in Directive 2004/48 and which are necessary to ensure that persons concerned by such proceedings have a later opportunity to challenge these measures.

The EP INTA study proposes annotating the text with additions from the TRIPS Agreement outlining the mandatory safeguards that ACTA has omitted to mention in areas such as provisional measures. But this approach does not solve the issues raised by Korff and Brown, see the next section on Injunctions, provisional measures and fundamental rights (2.1.3.2.).

C. The FFII pointed out ACTA has a broader formulation of third party than the current EU legislation: “ACTA also contains injunctions against third parties (Art 8.1). ACTA adds “inter alia” and has a broader formulation of third party than the current EU legislation. ACTA includes third parties who are not intermediaries, like suppliers of raw materials and software. This may impact access to medicine and the ICT sector.” (FFII)

2.1.3.2. Injunctions, provisional measures and fundamental rights

Douwe Korff & Ian Brown: “All “civilised” legal systems that provide for such extraordinary special processes also provide for such special counter-balancing safeguards. In the EU, it might perhaps be assumed that States will indeed only ever allow for the use of the extraordinary measures envisaged in ACTA (and especially for inaudita proceedings in IPR cases) in circumstances where this is exceptionally clearly warranted; and that they will surround those measures, also in IPR cases, with the kinds of counter-balancing safeguards they also provide for such special measures in other civil cases.

ACTA does not require this. This has two potentially pernicious effects. First, it might suggest to European States that the extraordinary measures should be seen as less extraordinary – perhaps even normal – when it comes to IPR enforcement; and that there is less need for counter-balancing safeguards. Secondly, it appears to signal to other countries that perhaps are less sensitive to defendants’ rights that a defendant-unfriendly approach is acceptable in IPR matters.

In terms of the ECHR, the first would amount to a clear violation of the Convention. And any complicity by the EU in the undermining of that principle in third countries would violate the principle in the Treaty that the EU will encourage respect for human rights in such other countries.

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 counter-balancing 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.”

2.2. Criminal measures

2.2.1 ACTA compared with TRIPS

Before people had computers, it took an effort to infringe copyright. One had to make a physical copy. Since people have computers, infringement is often just one mouse click away. With infringements so near, it is essential that countries retain the policy space to find a proportional solution.

Comparing ACTA with the TRIPS agreement (paragraph 43), the legal service notes that the definition of commercial scale in ACTA seems prima facie to encompass a broader sphere of activities. This is an understatement.

The 1994 WTO TRIPS agreement contains criminal measures against wilful trademark counterfeiting or copyright piracy on a commercial scale. The TRIPS agreement leaves commercial scale undefined. In the US versus China case, the WTO dispute settlement panel defined commercial scale as: “typical or usual commercial activity with respect to a given product in a given market”. This definition leaves countries policy space to find a proportional solution.

ACTA deliberately replaces this definition with: “commercial activities for direct or indirect economic or commercial advantage”. Note that this definition does not contain a minimum threshold (de minimis exception). ACTA removes the scale element from the definition of the crime. ACTA does not have a public interest exemption either.

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. ACTA criminalises almost everyone with a computer – who never forwarded an email? ACTA also criminalises aiding and abetting, which puts pressure on Internet Service Providers, who may decide to pre-emptively censor Internet communications.

Countries should not take upon them the obligation to criminalise everyday computer use. We may rather need to rethink the relationship between computer use, and copyright and enforcement, than impose blanket criminalisation. We need to retain the policy space to find a proportional solution.

The legal service fails to notice ACTA criminalises everyday computer use.

2.2.2. ACTA compared with European Parliament position

The legal service compares ACTA’s criminal measures with the Parliament’s 2007 position on IPRED 2 (Proposal for a Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights). (paragraphs 31 and 32)

Regarding the definition of commercial scale, the legal service does not notice the considerable issues. These issues have been noted by the FFII, the European academics, the EP INTA study and Korff and Brown. The INTA study uses the word “clash”: “This may clash with broad definition of “commercial scale” used in ACTA.” The European Data Protection Supervisor noted: the ‘commercial scale’ criterion is decisive.

ACTA does not have the fair use exception the Parliament made. The legal service notes that EU countries can introduce or maintain such exceptions on the basis of article 5 Copyright directive. But material exceptions are different than procedural exceptions. The legal service’s approach takes away the option to make an act an infringement, but not a crime. Furthermore, fair use may be more flexible than the Copyright directive exceptions.

Regarding the scope of ACTA, the legal service notes the Parliament excluded parallel imports. NGOs, European academics and the EP INTA study noted that such exclusion is not reflected in ACTA. The legal service does not address this issue. Parallel import is (also) important for access to medicine.

2.2.3 Criminal measures and fundamental rights

The ARTICLE 19 organisation notes regarding the definition of commercial scale:

“This terminology is as vague as it is broad, and if transplanted directly into domestic criminal law would not be considered to have the qualities of legal accessibility or certainty required by Article 19 of the ICCPR.

The concept of ‘indirect economic advantage’ potentially encompasses innocuous copyright infringements that would not ordinarily be considered ‘commercial’. For example, an individual transferring a digital copy of a book between their electronic devices in breach of copyright may receive an “indirect” economic advantage by avoiding the cost of buying a second copy. The language of ACTA allows such conduct and similar trivial infringements to be framed as criminal, and therefore worthy of punitive custodial sentences, fines, and a permanent criminal record.”

Douwe Korff & Ian Brown: “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.”

2.3. Internet

In paragraph 17 (page 3) the legal service notes: “Furthermore, the conclusion of ACTA would not require the EU to adapt its acquis regarding measures relating to the digital environment.”

This is only true if the EU does not have to adapt its acquis at all. We already saw that the legal service overlooked issues with damages, injunctions, and provisional and criminal measures. These heightened measures will apply to the digital environment as well. This will put pressure on Internet Service Providers, who may decide to pre-emptively censor Internet communications.

The legal service does not mention the obligation in ACTA art 27.3: “Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.”

The text mentions fundamental principles, not fundamental rights. The business community can not guarantee fundamental rights. ACTA incites privatised enforcement outside the rule of law.

This is not compatible with article 21 TEU, the Union’s action on the international scene shall be guided by the principles of democracy and the rule of law, the universality and indivisibility of human rights and fundamental freedoms (…).

2.4. Fundamental rights

2.4.1 Safeguards or fig-leaves?

The legal service concludes in paragraph 40 d) that it “appears that the Agreement per se does not impose any obligation on the Union that is manifestly incompatible with fundamental rights. On the contrary, several provisions of ACTA provide for the respect of fundamental rights when the Contracting Parties implement the proposed Agreement.”

This is in strong contrast with the European academics and Korff & Brown. Douwe Korff & Ian Brown, fundamental rights experts, conclude: “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.”

Are the safeguards in ACTA effective or little more than fig-leaves?

First, damages, injunctions, and provisional, border and criminal measures are intrusive. They need precise limits.

Secondly, we already saw that the legal service overlooked issues with damages, injunctions, and provisional, border and criminal measures. The measures in ACTA are more intrusive than the legal service acknowledges.

Thirdly, 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.

Such tests show which limitations are needed. As we saw above, for damages the keywords are: reasonable reflection of actual loss, equitably assessed by a court. For injunctions and inaudita proceedings the keywords are: exception, high exception and counter-balancing safeguards. For criminal measures the keywords are: de minimis exception and public interest exception. For more fair balance tests, see the Douwe Korff & Ian Brown opinion.

ACTA does not provide such limitations, ACTA is manifestly incompatible with fundamental rights. Just providing a general reference to fundamental rights is not enough.

Implementing ACTA takes a serious rewrite of ACTA. This will not be easy as both the Commission and the EP legal service consistently overlook major issues. It will lead to many years of legal uncertainty and fundamental rights violations before things are sorted out by courts.

In third countries with less protection of fundamental rights, the situation will be worse, the EU violates article 21 Treaty on European Union: “The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.”

2.4.2 General conclusions

ARTICLE 19 “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.”

Douwe Korff & Ian 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.”

2.5. International agreements

2.5.1 Global pricing problem

The legal service does not address the global pricing problem and the right to take part in cultural life.

In emerging economies, CDs and DVDs are often sold for the same prices as in the US and Europe. 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, the Media Piracy in Emerging Economies report shows. There is no distribution of legal CDs and DVDs outside the capitals. Some 90% of the people in emerging economies can only turn to illegal media copies.

We all know pictures of big piles of illegal CDs to be destroyed by a bulldozer. We may think: finally country X takes action against piracy. The real story behind these pictures is that these illegal copies are the only way 90% of the people in emerging economies can enjoy software, music and movies. The costs in social welfare of harsh measures are enormous.

Some 90% of the people in emerging economies are dependent on illegal copies. This is not compatible with the UN International Covenant on Economic, Social and Cultural Rights (ICESCR), which recognizes the right of everyone to take part in cultural life; and to enjoy the benefits of scientific progress and its applications (art 15.1 (a) and (b)).

This is already happening under the TRIPS agreement.

ACTA’s damages will change the situation for the worse. Someone in an emerging economy selling 100 illegal copies of a CD for 2 euro, has a gross revenue of 200 euro. With damages based on retail price, he may have to pay 2000 euro damages (100 x 20), ten times his gross revenue. The actual loss suffered may be zero, as there is no distribution of legal CDs outside the capitals, and almost none of his clients would have been able to pay the retail price.

And add the criminal measures to this, which turn against consumers as well.

2.5.2. ICESC and ICCPR

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).

2.6. EU Treaties

In the sections on Internet and Fundamental rights we already mentioned ACTA is not compatible with article 21 TEU.

Above we saw ACTA makes the global pricing problem worse. Exporting such draconian measures is not compatible with article 21 TEU either. Nor is it compatible with art 3.5 Treaty on European Union: “In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.”

In Eastern Europe the incomes are much lower than in Western Europe, creating a regional pricing problem much like the global pricing problem.

Euractive.com reports:

“Ivan Dikov writes in an op-ed with the Bulgarian news website Novinite that Bulgaria is a country much poorer than the remaining ACTA signatories and could not in fact assume the same responsibilities.

Torrent sites such as Zamunda and Arena are the most popular websites in Bulgaria. The reason for that is not just the enormous amount of music, films, software, and books that they make available to anybody for free. The sites are not accessible from outside the country.

These torrent sites are technically in violation of all sorts of copyright laws but what they offer has no alternative for the people in Bulgaria for the time being given the country’s social and economic development, Dikov argues.”

ACTA makes this regional pricing problem worse. ACTA is not compatible with art 3.3 TEU: “It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.”

ACTA is fundamentally disproportional. Adding a reference to proportionality does not solve this, a violation of art 5 TEU.

The legal service does not mention that if the EU would like to exercise its competence to ratify ACTA’s criminal measures, the measures have to be proven essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures (art 83.2 TFEU).

EP INTA study: “Whether the criminal measures proposed under ACTA fulfill this standard of essentiality is questionable, particularly in view of the debate that has been ongoing since the IPRED2 was proposed. Several scholars and the Dutch Parliament have expressed their serious concerns whether such criminal measures, which are similar to those included in ACTA, fulfill the standard of subsidiarity. The same questions would arise in the context of the criminal measures proposed by ACTA.”

2.7. Public health

The legal service refers a few times to ACTA’s provisions on the TRIPS agreement and the Doha Declaration.

The Doha Declaration is mentioned only once in the non binding ACTA preamble: “Recognizing the principles set forth in the Doha Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001, at the Fourth WTO Ministerial Conference;”

The TRIPS agreement is mentioned twice in the non binding preamble, above and: “Intending to provide effective and appropriate means, complementing the TRIPS Agreement, for the enforcement of intellectual property rights, taking into account differences in their respective legal systems and practices;”

The Doha Declaration is not mentioned in ACTA’s articles, TRIPS is mentioned a few times:

Article 1 “Nothing in this Agreement shall derogate from any obligation of a Party with respect to any other Party under existing agreements, including the TRIPS Agreement.”

Article 2.3 “The objectives and principles set forth in Part I of the TRIPS Agreement, in particular in Articles 7 and 8, shall apply, mutatis mutandis, to this Agreement.”

Article 13: “In providing, as appropriate, and consistent with its domestic system of intellectual property rights protection and without prejudice to the requirements of the TRIPS Agreement, for effective border enforcement of intellectual property rights, a
Party should do so in a manner that does not discriminate unjustifiably between intellectual property rights and that avoids the creation of barriers to legitimate trade.”

ACTA also uses the TRIPS definition of intellectual property rights, and mentions TRIPS in the article on injunctions.

The Doha Declaration is not mentioned explicitly in the articles. The legal service notes that the TRIPS agreement includes the Doha Declaration. This would provide enough certainty for parties.

Above, in the section on border measures, we saw that the latest US and EU interpretation of the Doha Declaration is more limited than the original WTO interpretation. The combination of a non binding reference to the Doha Declaration and undermining the Doha Declaration in other fora does not provide full certainty. Rather, the pressure is on.

Above, in the section on border measures, we already saw that the legal service only quotes the first half of ACTA article 13, leaving out the condition “not discriminate unjustifiably”.

Above, in the section on criminal measures, we say the legal service does not address the issue with criminalisation of parallel import.

Health groups and an academic study point out issues regarding access to medicine.

Oxfam Statement regarding ACTA and Public Health: “ACTA will undoubtedly impact access to affordable medicines in the EU and other signatories by curbing generic competition. There are great concerns that ACTA’s impact will extend beyond those countries that initially sign the Agreement, potentially undermining access for millions of patients in developing countries who depend on affordable, quality generics.”

Public Citizen regarding access to medicine. Public Citizen raised concerns that the purported benefits of ACTA for public safety would be slim at best. Meanwhile, ACTA’s opportunity cost for more effective measures against unsafe products could be significant. Further, ACTA may impose direct costs on public health, by creating uncertainty and financial disincentives for the shipping of generic medicines. Public Citizen strongly advises a deeper and more considered legal review of ACTA.

The Greens / EFA group commissioned study on ACTA and Access to Medicines. This study by Sean Flynn with Bijan Madhani concludes that ACTA increases the risks and consequences of wrongful searches, seizures, lawsuits and other enforcement actions for those relying on intellectual property limitations and exceptions to access markets, including the suppliers of legitimate generic medicines. This, in turn, is likely to make affordable medicines more scarce and dear in many countries.

FFII’s own analysis regarding technology concludes that ACTA’s heightened measures may hinder development and availability of medical equipment, diagnostic methods and instruments; will restrict government flexibility, impede innovation and slow the development and diffusion of green technology. (FFII-675)

ACTA’s heightened measures impact access to affordable medicines, while its safeguards do not provide certainty.

2.8 Policy space

ACTA will foreclose future legislative improvements in response to changes in technology or policy. EU law is relatively new and under review, the Union needs to retain policy space.

3. References

ARTICLE 19 http://www.article19.org/resources.php/resource/2901/en/european-parliament:-reject-anti-counterfeiting-trade-agreement-%28acta%29 (Statement published 15 December 2011, after the legal service’s opinion)

Douwe Korff & Ian Brown, Opinion on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights, 2011 http://rfc.act-on-acta.eu/fundamental-rights

Euractive.com http://www.euractiv.com/infosociety/acta-activates-european-civil-society-news-510533

European Parliament INTA study http://www.erikjosefsson.eu/sites/default/files/DG_EXPO_Policy_Department_Study_ACTA_assessment.pdf

European Parliament legal service’s opinion on ACTA (contains the opinion requested by the EP INTA Committee, starting at page 9) http://christianengstrom.files.wordpress.com/2011/12/sj-0661-11_legal-opinion.pdf or
http://lists.act-on-acta.eu/pipermail/hub/2011-December/000072.html.

FFII-675 http://acta.ffii.org/?p=675

FFII http://action.ffii.org/acta/Analysis

KEI-1267 http://www.keionline.org/node/1267

Media Piracy in Emerging Economies, edited by Joe Karaganis http://piracy.ssrc.org

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

Opinion of the European Data Protection Supervisor on the current negotiations by the European Union of an Anti-Counterfeiting Trade Agreement, paragraph 44 http://www.edps.europa.eu/EDPSWEB/edps/Consultation/OpinionsC/OC2010

Oxfam Statement regarding ACTA and Public Health http://www.oxfamsol.be/fr/IMG/pdf/Oxfam_ACTA_analysis_FINAL.pdf

Public Citizen http://www.citizen.org/documents/Letter-to-Members-of-the-Committee-on-Legal-Affairs-on-the-ACTA.pdf

Sean Flynn with Bijan Madhani, ACTA and Access to Medicines http://rfc.act-on-acta.eu/access-to-medicines

Posted in EU | 5 Comments

Letter to EP Legal Affairs Committee

Tomorrow, 20 December 2011, the European Parliament Legal Affairs Committee will discuss ACTA.

Today, the FFII sent a letter to the committee. Below and pfd.

Dear Members of the Legal Affairs Committee,

The world faces major challenges: access to medicine, diffusion of green technology needed to fight climate change, and a balanced Internet governance. While flexibility is essential to solve these major issues, the Anti-Counterfeiting Trade Agreement (ACTA) codifies draconian measures. ACTA’s predecessor, the 1994 WTO TRIPS agreement, still hampers fair trade, even in life saving generic medicines. The EU should have chosen to further balance, in the World Trade Organization, the TRIPS agreement.

It is not too late. ACTA goes beyond US law, the US will not ratify ACTA. The Mexican Senate urged the government not to sign ACTA. India, Brazil and China have turned against ACTA. The EU can and should reject ACTA, and seek a balanced solution in WTO and WIPO.

Otherwise, it is the EU itself that will suffer under ACTA, while its competitors will not. ACTA’s measures are meant to paralyze people. ACTA’s intrusive character harms health and freedom of expression. ACTA will have a chilling effect on innovation, Internet service providers, mass digitization projects, startup companies and diffusion of green technology.

We will give two examples of a global pricing problem that ACTA will not solve but aggravate. We will show ACTA’s measures are draconian and go beyond current EU law. ACTA will hamper essential freedom to act and innovate in the knowledge society.

From TRIPS to ACTA

A few years after the European Community ratified the 1994 WTO TRIPS agreement, the AIDS epidemic took many lives in Africa. In sub-Saharan Africa alone more than 17 million people have died. After treatment became available, pharmaceutical companies sold AIDS medicine in Africa for prices higher than in the US. They only served a small number of patients, the others died. Mandela’s intervention, and international outcry, ultimately led to the Doha Declaration on TRIPS and Public Health.

Despite the Doha Declaration, the access to medicine problem still exists. Pulitzer Prize winner Tina Rosenberg wrote on the NY Times Opinionator blog: “The new strategy is to treat people in Egypt, Paraguay, Turkmenistan or China — middle-income countries, all — as if they or their governments could pay hundreds or even thousands of dollars a year each for AIDS drugs. This low-volume high-profit strategy might make business sense. But in terms of the war against AIDS, it means surrender.”

It is impossible to maximize both profits and access to medicine. To not commit a crime against humanity, access to medicines has to come first. Health groups and academics have pointed out ACTA will undermine access to generic medicines, see below.

Draconian measures do not help against media piracy

High prices for media goods, low incomes, and cheap digital technologies are the main ingredients of global media piracy. 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, the Media Piracy in Emerging Economies report shows. There is no distribution of legal CDs and DVDs outside the capitals. Some 90% of the people in emerging economies can only turn to illegal media copies. Stronger enforcement can not solve the piracy problem, which is basically a global pricing problem, a sign of market failure.

We all know pictures of big piles of illegal CDs to be destroyed by a bulldozer. We may think: finally country X takes action against piracy. The real story behind these pictures is that these illegal copies are the only way 90% of the people in emerging economies can enjoy software, music and movies. The costs in social welfare of harsh measures are enormous.

ACTA adds draconian measures

ACTA introduces damages based on retail price. This leads to damages based on an imaginary gross revenue. For instance, someone in an emerging economy selling 100 illegal copies of a CD for 2 euro, has a gross revenue of 200 euro. With damages based on retail price, he may have to pay 2000 euro damages (100 x 20), ten times his gross revenue. The actual loss suffered may be zero, as there is no distribution of legal CDs outside the capitals, and almost none of his clients would have been able to pay the retail price.

Copying a hard disk for personal use may lead to a 540.000 euro lawsuit. Mass digitization projects and start up companies may face lawsuits of millions or billions euro.

These damages go beyond current EU law, which is based on actual loss suffered, including lost profits. The Commission denies ACTA’s damages are higher than EU law. Apparently, the Commission does not want to see the difference between imaginary gross revenue and actual lost profits.

ACTA’s criminal measures turn against citizens as well. ACTA includes criminal measures, without excluding small scale infringements and public interest infringements. ACTA can be used to criminalise newspapers revealing a document, office workers forwarding a file, people making a private copy and whistle-blowers revealing documents in the public interest.

Conclusion

ACTA will not solve the global pricing problem, but aggravate it. ACTA will increase social welfare costs, inflict unjustified and disproportional punishment and endanger lives. ACTA will hamper essential freedom to act and innovate in the knowledge society.

For references and further analyses, please see below.

Yours sincerely,

Ante Wessels

Foundation for a Free Information Infrastructure

References and further analyses

Media Piracy in Emerging Economies, edited by Joe Karaganis. Media Piracy in Emerging Economies is the first independent, large-scale study of music, film and software piracy in emerging economies, with a focus on Brazil, India, Russia, South Africa, Mexico and Bolivia.
http://piracy.ssrc.org

Opinion of European Academics on ACTA: “Contrary to the European Commission’s repeated statements and the European Parliament’s resolution of 24 November 2010, 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.”
http://www.iri.uni-hannover.de/acta-1668.html

European Commission’s services comments to the European Academics’ Opinion on ACTA:
http://trade.ec.europa.eu/doclib/docs/2011/april/tradoc_147853.pdf

The European Commission’s services comments to the European Academics’ Opinion on ACTA are very weak. In one case, the Commission actually even states it insisted ACTA would go further than current EU legislation. See: FFII: The EU Commission lacks basic reading skills:
http://acta.ffii.org/wordpress/?p=598

A study commissioned by the European Parliament INTA committee evaluated the prior discussion, and concluded that ACTA indeed goes beyond the current EU legislation: “for those European Parliamentarians for whom conformity with the EU Acquis is sine qua non for granting consent, this study cannot recommend that they provide such consent to ACTA as it now stands.”
http://www.erikjosefsson.eu/sites/default/files/DG_EXPO_Policy_Department_Study_ACTA_assessment.pdf
See also FFII comments on the INTA study:
http://acta.ffii.org/?p=681

Korff and Brown, fundamental rights experts, regarding damages: “In our opinion, here too ACTA is deficient: without express clarification to the effect that damages awarded to right holders must be a reasonable reflection of actual loss, equitably assessed by a court (rather than an exaggerated assessment based on an unchallengeable but rigged formula), the Agreement violates both the right to property and the right to a fair (civil) trial of the defendants.”

Korff and Brown regarding criminal measures: “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.”

Douwe Korff & Ian Brown, Opinion on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights, 2011:
http://rfc.act-on-acta.eu/fundamental-rights

FFII: Copyright Criminal measures in ACTA
http://acta.ffii.org/?p=34

Internet Society:
http://www.isoc.org/internet/issues/acta.shtml

Oxfam Statement regarding ACTA and Public Health: “ACTA will undoubtedly impact access to affordable medicines in the EU and other signatories by curbing generic competition. There are great concerns that ACTA’s impact will extend beyond those countries that initially sign the Agreement, potentially undermining access for millions of patients in developing countries who depend on affordable, quality generics.”
http://www.oxfamsol.be/fr/IMG/pdf/Oxfam_ACTA_analysis_FINAL.pdf

Public Citizen regarding access to medicine. Public Citizen raised concerns that the purported benefits of ACTA for public safety would be slim at best. Meanwhile, ACTA’s opportunity cost for more effective measures against unsafe products could be significant. Further, ACTA may impose direct costs on public health, by creating uncertainty and financial disincentives for the shipping of generic medicines. Public Citizen strongly advises a deeper and more considered legal review of ACTA.
http://www.citizen.org/documents/Letter-to-Members-of-the-Committee-on-Legal-Affairs-on-the-ACTA.pdf

The Greens / EFA group commissioned study on ACTA and Access to Medicines. This study by Sean Flynn with Bijan Madhani concludes that ACTA increases the risks and consequences of wrongful searches, seizures, lawsuits and other enforcement actions for those relying on intellectual property limitations and exceptions to access markets, including the suppliers of legitimate generic medicines. This, in turn, is likely to make affordable medicines more scarce and dear in many countries.
http://rfc.act-on-acta.eu/access-to-medicines

A Trade Barrier to Defeating AIDS, by Tina Rosenberg:
http://opinionator.blogs.nytimes.com/2011/07/26/a-trade-barrier-to-defeating-aids/

FFII regarding green technology: ACTA’s heightened measures may hinder development and availability of medical equipment, diagnostic methods and instruments; will restrict government flexibility, impede innovation and slow the development and diffusion of green technology.
http://acta.ffii.org/?p=675

DRAHOS, P., with BRAITHWAITE, J., Information Feudalism, Who Owns the Knowledge Economy?, Earthscan Publications Ltd, 2002
http://cgkd.anu.edu.au/menus/PDFs/Information%20Feudalism.pdf

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

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

European Digital Rights initiative booklet on ACTA:
http://www.edri.org/files/acta-bklt-p2s.pdf

Posted in EU | 5 Comments

Dutch Minister says refusal to provide access to the EP legal service’s opinion on ACTA is “odd/crazy”

  • At a Dutch House of Representatives’ committee meeting, 13 December 2011, minister of Economic Affairs, Agriculture and Innovation, Maxime Verhagen, said the refusal to provide access to the European Parliament’s legal service’s opinion on ACTA is “gek”: odd/crazy/silly.

    The European Parliament’s International Trade Committee asked the legal service for an opinion on ACTA. The opinion is ready and secret. The FFII requested the document.

    Mr Verhagen mentioned that a Dutch citizen requested the document, and that the request was rejected. He called this “crazy” (Dutch: gek). The minister said the Parliament does not want to publish the opinion to protect the public interest as regards international relations.

    Later, he gets back to the issue and says: “I support this Dutch citizen in spirit and deed”.

    Before Verhagen became Minister of Economic Affairs, Agriculture and Innovation, he served his country as Minister of Foreign Affairs of the Netherlands. This experienced minister does not agree with the Parliament that publication would undermine the public interest as regards international relations.

    He first mentions the request at 44.30 minutes. He uses the word “gek” (crazy/odd/silly) twice. He expresses his support at 48.50 minutes (youtube). Dutch text: “Ik steun deze Nederlandse burger in geest en daad”.

    The European Parliament’s Legal Affairs committee requested an opinion as well. The FFII requested both documents.

    During the meeting, Mr Verhagen also said many ACTA texts were leaked by the European Parliament.

  • Posted in EU | 3 Comments

    EP Legal Affairs Committee newsletter very positive about ACTA

    The JURI Report, the newsletter of the European Parliament Legal Affairs Committee, is a very positive about ACTA.

    “Thus, it will provide benefits for EU exporting right holders operating in the global market who currently suffer systematic and widespread infringements of their copyrights, trademarks, patents, designs and geographical indications abroad.”

    Not a word about all the civil society and academic criticism on ACTA. The critical European Parliament INTA study is not mentioned.

    The report probably reflects the views of rapporteur Marielle Gallo, MEP, who will write the Legal Affairs committee Opinion on ACTA.

    The Committee will discuss ACTA on 20 December 2011, 10.00 – 12.30

    A stream will be available here.

    The Report on ACTA:

    Further to the adoption of the negotiating directives by the Council on 14 April 2008, negotiations on the Anti-Counterfeiting Trade Agreement between the EU and its Member States, Australia, Canada, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the USA (ACTA) were launched on 3 June 2008. The agreement was concluded on 15 November 2010 and the text was initialled on 25 November, after 11 rounds of negotiations. The current proposal concerns the Parliament’s consent to the conclusion of ACTA by the Council on behalf of the EU.

    The EU Member States were kept informed of the negotiations orally and in writing. The European Parliament has been kept informed on developments via its Committee on International Trade (INTA) and by Commissioner Karl De Gucht in three plenary debates in 2010. On 24 November 2010, the European Parliament adopted a Resolution supporting ACTA.

    ACTA aims to establish a comprehensive international framework that will assist the EU in its efforts effectively to combat infringements of intellectual property rights (IPR), which undermine legitimate trade and the EU’s competitiveness with negative repercussions on growth and jobs.

    Although ACTA does not aim at modifying the EU acquis it will introduce a new international standard, building upon the World Trade Organisation’s TRIPS Agreement (adopted in 1994). Thus, it will provide benefits for EU exporting right holders operating in the global market who currently suffer systematic and widespread infringements of their copyrights, trademarks, patents, designs and geographical indications abroad.

    ACTA contains a number of provisions on criminal enforcement that fall within the scope of Article 83(2) TFEU. Those parts of the agreement, in contradistinction to those parts falling under Article 207, fall under the area of shared competences (Article 2(2) TFEU). Where a matter falls under shared competence either the European Union or Member States may legislate and adopt legally binding acts.

    The Commission’s position as regards ACTA and Article 83(2) TFEU is without prejudice to the position of the Commission on the future exercise by the EU of the shared competences foreseen by Article 83(2) TFEU as regards other initiatives.

    Regarding the signature and conclusion of ACTA, the Commission has opted not to propose that the European Union exercise its potential competence in the area of criminal enforcement pursuant to Article 83(2) TFEU. The Commission considers this appropriate because it has never been the intention, as regards the negotiation of ACTA, to modify the EU acquis or to harmonise EU legislation as regards criminal enforcement of intellectual property rights. For this reason, the Commission proposes that ACTA be signed and concluded both by the EU and by all the Member States.

    The Parliament’s Legal Service has been requested by the INTA and JURI committees to provide legal opinions on ACTA.

    At this meeting the committee will hold a first exchange of views with the rapporteur Marielle Gallo taking the lead in the debate.

    Posted in EU | 1 Comment

    Will the European Parliament Public Health committee formulate an opinion on ACTA?

    As things stand now, the European Parliament committee on Environment, Public Health and Food Safety will not formulate an opinion on ACTA. Despite all the analysis work done on the effects ACTA will have on access to medicine, and despite health groups informed the Parliament, no Member of Parliament has asked the committee to formulate one.

    It seems that there is not much awareness or interest in this committee in ACTA. The window of opportunity to get the committee to formulate an opinion is closing fast. Coming week, a very last attempt can be made.

    This weekend, and the first days of next week, health groups have the last possibility to contact the committee members.

    Recent analysis

    Oxfam released a statement regarding ACTA and Public Health: “ACTA will undoubtedly impact access to affordable medicines in the EU and other signatories by curbing generic competition. There are great concerns that ACTA’s impact will extend beyond those countries that initially sign the Agreement, potentially undermining access for millions of patients in developing countries who depend on affordable, quality generics.”

    Public Citizen raised concerns that the purported benefits of ACTA for public safety would be slim at best. Meanwhile, ACTA’s opportunity cost for more effective measures against unsafe products could be significant. Further, ACTA may impose direct costs on public health, by creating uncertainty and financial disincentives for the shipping of generic medicines. Public Citizen strongly advises a deeper and more considered legal review of ACTA.

    The Greens / EFA group commissioned a study on ACTA and Access to Medicines. This study by Sean Flynn with Bijan Madhani concludes that ACTA increases the risks and consequences of wrongful searches, seizures, lawsuits and other enforcement actions for those relying on intellectual property limitations and exceptions to access markets, including the suppliers of legitimate generic medicines. This, in turn, is likely to make affordable medicines more scarce and dear in many countries.

    Green technology

    An FFII analysis shows ACTA’s heightened measures may hinder development and availability of medical equipment, diagnostic methods and instruments; will restrict government flexibility, impede innovation and slow the development and diffusion of green technology.

    Posted in EU | Comments Off

    Dutch parliament refuses ACTA secrecy

    On the same day that the European Parliament had its first secret meeting on ACTA (Anti-Counterfeiting Trade Agreement), the Dutch parliament decided it will not take ACTA into consideration unless all ACTA negotiation texts are published.

    A few weeks ago, the Dutch House of Representatives’ committee of Economic Affairs, Agriculture and Innovation requested the ACTA negotiation texts (the earlier versions of ACTA). The minister of Economic Affairs, Agriculture and Innovation, Maxime Verhagen, sent the texts to parliament, adding a non disclosure obligation. In debates, Members of Parliament may not refer to the documents, nor quote from them.

    Sunday, Bits of Freedom sent a letter to the committee, asking the committee not to accept the secrecy.

    Committee member Kees Verhoeven (D66) proposed a message from the committee to the minister that no substantive treatment of any ACTA document can be made without publication of all relevant documents and above all that the committee can discuss all documents in public. According to experts, the treaty has major implications for Dutch legislation (eg on copyright and Internet freedoms) and the House can’t at the moment consult experts nor can it inform the public about ACTA’s consequences, since ACTA is partly confidential. For this reason, the committee also requests the minister not to take irreversible steps, neither in Europe and nor in the Netherlands, in terms of ACTA. And towards the commission itself, the proposal to temporarily withdraw all ACTA related documents from the agenda until the minister discloses all documents.

    Bits of Freedom reports a majority in the Dutch House of Representatives (D66, PVV, GroenLinks, SP and PvdA) adopted the proposal.

    Update: December 13, the PVV changed opinion, a plenary motion did not get a majority.

    Meanwhile in Brussels, the European Parliament International Trade committee (INTA) held a highly controversial in-camera meeting to learn what the legal service of the European Parliament thinks of ACTA.

    On 9 November, the FFII had send an open letter to the Chairman of the Committee on International Trade (INTA), in which the FFII objected to the planned in-camera meeting on the 23th. On 12 November the INTA chairman defended the secrecy in a letter to the FFII.

    7 civil society groups asked for European Parliament transparency on ACTA on the 17th. On Friday the 18th, the Parliament refused to disclose the legal service’s opinion on ACTA, “disclosure would undermine the protection of the public interest as regards international relations”.

    On Sunday, the FFII filed a confirmatory application for the legal service’s opinion on ACTA. According to the FFII, the argument that disclosure of the opinion would undermine international relations is totally overstretched. The Parliament’s second reason violates the European Court of Justice case law (Turco case), and the third argument lacks substance.

    On Monday 21st, sources in Parliament reported the meeting was postponed. But on Wednesday the 23th, the meeting was on.

    Henrik Alexandersson, assistant to Christian Engstrom, reports on his blog:

    - Controversial INTA meeting on ACTA held in camera today 23 November despite protests from Civil Society.
    - Previous decision to postpone the meeting annulled yesterday night by INTA Coordinators.
    - Vote on holding the meeting in public was denied.

    After 4 European Parliament resolutions asking for ACTA transparency, the Parliament now took the decision to keep the legal service’s opinion confidential. And to meet in-camera.

    This whole show will be repeated soon: the Legal Affairs Committee asked for a legal service’s opinion as well.

    A partly secret ratification process… How deep do you want to sink?

    The European Parliament should take a good look at the Dutch Parliament’s example.

    Posted in EU | 16 Comments

    “No impact assessment” is the new impact assessment

    ACTA would be considered by the European Parliament. Now a simple fact gets openly admitted:

    “IMPACT ASSESSMENT: no impact assessment was carried out.”

    and further the Commission claims without any evidence:

    “At the same time, ACTA is a balanced agreement, because it fully respects the rights of citizens and the concerns of important stakeholders such as consumers, internet providers and partners in developing countries.”

    Don’t you agree that is contradictory? Either you assess the impact or you don’t.

    Would the missing Impact Assessment weakness be a honey pot for MEPs, like lack of transparency during the negotiations? We know very well, a missing Impact Assessment makes all MEPs complain. Still the Impact Assessment issue distracts from more rotten provisions under the hood.

    Posted in EU | Comments Off

    Confirmatory application for legal service’s opinion on ACTA

    Today I refiled a confirmatory application for the European Parliament legal service’s opinion on ACTA.

    See also: http://acta.ffii.org/?p=904

    Dear Mr Welle,

    On 17 November, I filed a confirmatory application for A12541 – legal service’s opinion on ACTA. Apparently our letters crossed. Now that I received your letter, I will update my confirmatory application below.

    In your letter, you give three reasons for not providing access to major parts of the legal service’s opinion. I will address your arguments and provide an overriding public interest in disclosure of this document.

    = First reason

    “Firstly, pursuant to Article 4(1)(a) third indent of Regulation (EC) No. 1049/2001, ‘The Institutions shall refuse access to a document where disclosure would undermine the protection of the public interest as regards international relations’. The legal opinion under consideration has been drawn up as advice for a committee of the European Parliament in the context of the EU ratification process of the Anti-Counterfeiting Trade Agreement (ACTA).

    Important trading partners of the EU, such as the United States, Canada, Japan, Korea and Switzerland are contracting parties to the ACTA agreement. Disclosure of the parts of the legal opinion under consideration dealing with questions 1, 2 and 3 would seriously interfere with the complex ratification procedures of the ACTA agreement and the EU’s relations with the other contracting parties, as it might prejudice the ratification procedures by these countries.”

    If this argument would be true, it would be true for all documents on ACTA, including the already published INTA study, the upcoming draft committee opinions, (minutes of) committee meetings, committee opinions, draft INTA report, INTA report, draft resolution on ACTA, (minutes of) plenary meetings and even the resolution on ACTA, once adopted by plenary. And let’s not forget any public statement by Commission, Council, and Members of Parliament.

    The Parliament suggests to suspend democracy? Basically, this argument is unrelated to the legal service’s opinion. It is an argument against open societies, frank and free discussions. So this argument fails against providing access to the legal service’s opinion – since, if taken seriously, it would kill democracy.

    There are already many academic opinions on ACTA. A sound legal service’s opinion can hardly depart from these. The academic opinions did not prejudice the ratification processes, they made them richer. Publication of the legal service’s opinion will do this too.

    The negotiations are over. there is no confidentiality agreement for the ratification process. The ACTA text is published. Everyone can now analyse it. Finally, discussions can be free and informed.

    The biggest proponent of secrecy, the United States government, will not ask Congress to ratify ACTA. It is impossible to prejudice the ratification process in the US – there isn’t any. There may be more partners without a ratification process.

    The countries with a ratification process are self confident democracies, like Canada. Or they have a ruler that is self confident.

    The Congressional Research Service of the Library of Congress published most of its report on ACTA. This does not prejudice the ratification processes in other countries.

    The Mexican parliament already decided not to ratify ACTA, documents are available. This does not prejudice the ratification processes in other countries.

    The ratification process isn’t complex. Committees will formulate opinions and plenary will vote. For a parliament, this is everyday business.

    The INTA committee questions are specific and regard the EU context, they will probably not influence, and most certainly not prejudice, other ratification processes.

    There are other ratification processes in parallel. They may influence each other. More information only makes the ratification process richer, better informed. On a daily basis, parliaments cope with a world full of information. Information does not prejudice decision making processes. Does the Parliament suggest to abolish the freedom of the press?

    The Parliament uses the formulation “might prejudice”, a weak formulation. The Parliament does in no way make this weak statement credible.

    The Parliament fails to make the point that disclosure would “seriously interfere”.

    The Parliament often adopts resolutions dealing with the rest of the world. The Parliament is a proud parliament, expressing strong opinions. For instance, the Parliament recently adopted a resolution on the United States Stop Online Piracy Act (SOPA). This was a direct and official interference with an other country’s law making process. Which is much stronger than the publication of a legal service’s opinion on specific EU legal matters.

    The Parliament isn’t shy, is not afraid its actions undermine the protection of the public interest as regards international relations. Why then try this argument on European civilians? This is clearly a case of selective over anxiety.

    The Parliament easily takes on the world, but is afraid of its own citizens.

    This first reason is totally overstretched.

    = Second reason

    “Secondly, under Article 4(2) second indent of Regulation (EC) No.1049/2001, ‘The Institutions shall refuse access to a document where disclosure would undermine the protection of legal advice’. The process of legal advice provided by the Legal Service to political bodies of the European Parliament in the context of the ongoing ratification process of ACTA has not been completed.”

    While the process of legal advice provided by the Legal Service has not been completed, this document is ready. The European Court of Justice Turco case, which regarded a legal opinion, can be fully applied.

    Turco case 45: “In that respect, it is for the Council to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, as noted in recital 2 of the preamble to Regulation No 1049/2001, from increased openness, in that this enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.”

    Waiting with the release of the document only hampers citizens in participating “more closely in the decision-making process”. While publication would result in “the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system”. It is amazing the Parliament isn’t interested in this!

    ACTA will be binding upon the Union. Transparency is even more important with international agreements than in the case of EU legislation, since EU legislation can be changed afterwards, while the Union can not easily withdraw from international agreements.

    Turco case 46: “Those considerations are clearly of particular relevance where the Council is acting in its legislative capacity, as is apparent from recital 6 of the preamble to Regulation No 1049/2001, according to which wider access must be granted to documents in precisely such cases. Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.”

    European citizens want to effectively exercise their democratic rights.

    I will provide additional overriding public interest in disclosure below.

    = Third reason

    “Thirdly, according to the first paragraph of Article 4(3) of Regulation (EC) No. 1049/20001, ‘Access to a document, drawn up by an institution for internal use which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.’

    So far, the Parliament has not yet taken its final decision on the matter. The procedure for the conclusion of ACTA is still at its very early stage as explained in my reply of 29 September concerning your request A(2011)9722. Following the Commissions proposals of 24/6/2011 [2], INTA Committee requested this legal opinion from the Legal Service but has not yet discussed this matter.”

    The Parliament makes the point that the decision has not been taken by the institution. But the Parliament does not substantiate in any way that disclosure would seriously undermine the institution’s decision-making process.

    It is the other way around. Disclosure will help the institution’s decision-making process. There will be a deeper, better informed debate in Europe, the Members of Parliament will have better input and feedback. Publication of a legal opinion is of general interest and helps the decision-making process.

    Disclosure would strengthen democracy by allowing citizens to scrutinize the document. The possibility for citizens to find out the considerations underpinning the debate is a precondition for the effective exercise of their democratic rights. European citizens want to effectively exercise their democratic rights – and this will help the decision-making process.

    I will provide additional overriding public interest in disclosure below.

    = Overriding public interest in disclosure

    Parliament will have to balance the interest to be protected by non-disclosure and public interest in disclosure. While doing this, the Parliament will have to take into account art 103 of its Rules of Procedure: “1. Parliament shall ensure that its activities are conducted with the _utmost transparency_ , in accordance with the second paragraph of Article 1 of the Treaty on European Union, Article 15 of the Treaty on the Functioning of the European Union and Article 42 of the Charter of Fundamental Rights of the European Union.” (emphasis added)

    1. ACTA is a matter of life and death

    ACTA’s predecessor, the TRIPS agreement, killed millions of people. The world faces major challenges: access to medicine, diffusion of green technology needed to fight climate change, and a balanced Internet governance. While flexibility is essential to solve these major issues, ACTA codifies heightened measures.

    “Remember, governance is a big word that includes human rights, freedom of speech, economic transactions on a worldwide basis — it touches everything. It’s everywhere, and that’s why Internet governance is topic A in many corners.” Vincent Cerf, one of the godfathers of the Internet [2]

    500 Million Europeans, and billions abroad, are entitled to full transparency.

    2. World wide discourse on ACTA

    Prior to the legal service’s opinion, civil society and prominent academics analysed ACTA and found that ACTA goes beyond the current EU legislation and violates fundamental rights. [3]

    Opinion of European Academics on ACTA: “Contrary to the European Commission’s repeated statements and the European Parliament’s resolution of 24 November 2010, 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.”

    Health groups pointed out ACTA harms access to medicine. See for instance: Public Citizen on ACTA and access to medicine and Oxfam Statement regarding ACTA and Public Health.

    The European Commission’s services comments to the European Academics’ Opinion on ACTA is very weak. In one case, the Commission actually even states it insisted ACTA would go further than current EU legislation. See: FFII: The EU Commission lacks basic reading skills.

    A study commissioned by the European Parliament INTA committee evaluated the prior discussion, and concluded that ACTA indeed goes beyond the current EU legislation.

    European Parliament INTA study on ACTA: “for those European Parliamentarians for whom conformity with the EU Acquis is sine qua non for granting consent, this study cannot recommend that they provide such consent to ACTA as it now stands.” See also FFII comments on the INTA study.

    After that, Douwe Korff and Ian Brown, fundamental rights experts, confirmed ACTA violates a list of fundamental rights.

    An academic study by Sean Flynn and Bijan Madhani confirmed ACTA harms access to medicine.

    Let’s take one example. In EU law, damages are based on actual loss suffered, including lost profits. ACTA goes beyond actual loss. Suggested retail price damages are higher than actual prejudice. Amount multiplied by suggested retail price may lead to enormous damages, this has a chilling effect on mass digitization projects. ACTA’s damages are also a threat to consumers, for instance, if someone copies a hard disk. A 2 terabyte hard disk can contain 540.000 songs. Copyright holders can claim a euro per song damages multiplied by 540.000 = 540.000 euro. While the actual loss may be zero.

    Civil society, prominent academics and the INTA study pointed this out. The INTA study recommends: “Seeking clarification, before ratification of ACTA, from the European Court of Justice that the criteria envisaged by the ACTA for the quantification of the compensatory damages would not amount to a violation of the criterion of “appropriateness of the damage to the actual prejudice suffered” envisaged in the Enforcement of IPRs Directive;”

    Korff and Brown, fundamental rights experts, conclude: “In our opinion, here too ACTA is deficient: without express clarification to the effect that damages awarded to right holders must be a reasonable reflection of actual loss, equitably assessed by a court (rather than an exaggerated assessment based on an unchallengeable but rigged formula), the Agreement violates both the right to property and the right to a fair (civil) trial of the defendants.”

    ACTA’s damages beyond actual loss upset millennia of legal tradition. The decision to do this, is a grave decision. It should not be taken lightly, nor should the importance and the detrimental effects be obfuscated. Even, since the decision violates fundamental human rights, it can not be taken.

    ACTA also includes criminal measures. ACTA can be used to criminalise newspapers revealing a document, office workers forwarding a file and private downloaders; whistle blowers and weblog authors revealing documents in the public interest and remixers and others sharing a file if there is an advantage. This advantage may be indirect, a concept the FFII believes to be too unclear to incorporate in criminal law.

    Regarding ACTA’s criminal measures, Korff and Brown conclude: “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.”

    After all the discussion in public on ACTA, in particular after the release of the final text, it is hard, or even impossible, to conclude that ACTA does not go beyond the current EU legislation and does not violate fundamental rights. To convincingly state that ACTA stays in line with current EU legislation and fundamental rights, one has to address the prior findings, eliminate the doubts, and do this in public.

    3. The legal service’s opinion

    According to a European Digital Rights initiative publication, in response to the question about whether ACTA is in line with existing EU legal provisions, the legal service explains that the text is open to interpretation but, on the face of it, the agreement appears to be in line with current EU law. [4]

    This is rather amazing. The legal service goes against the academic communis opinio, it fails to notice that ACTA’s damages beyond actual loss upset millennia of legal tradition and fails to notice violations of fundamental human rights.

    Reports on the opinion indicate that the legal service did not address the prior findings, nor did it eliminate the doubts. The opinion certainly isn’t public. The legal service shows contempt for the world wide discourse on ACTA. It fears scrutiny.

    4. The Parliament’s services are not independent enough

    On 25 April 2007 the European Parliament rejected criminalisation of parallel importation when it voted on the Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (COD 2005/127).

    Parallel importation is not counterfeiting, a genuine product is bought and sold. Parallel importation is also important for access to medicine, a matter of life and death.

    In the consolidated text the amendment excluding parallel importation from criminalisation, was missing. The amendment was deliberately left out by the rapporteur, MEP Mr Zingaretti, who was responsible for the dossier. Only after Mr Zingaretti left Parliament, the President of the European Parliament decided to restore the amendment that excludes criminalisation of parallel importation. Prior to that, the Parliament had not answered any of the civil society calls to restore democracy. [5]

    The FFII discovered the missing amendment. After discovery, the FFII alerted the Parliament’s services. At some point, the services agreed this wasn’t correct. But they couldn’t do anything since the rapporteur had taken the decision.

    Making a consolidated text is a technical job. But, apparently, in the European Parliament, even this technical job is politicized.

    The Parliament’s register and INTA secretariat denied the existence of the INTA coordinators’ minutes four times (see below). The INTA secretariat provided the register with wrong information. The secretariats identify themselves too much with the political process.

    The Parliament’s services are not independent enough from the Parliament’s political processes. This compromises the Parliament’s integrity.

    5. Publication of legal service’s opinions will, over time, lead to better opinions

    The legal service is the Parliament’s house lawyer. Its task is to defend the Parliament’s positions in court. The legal service is not an impartial organisation. It is not an independent court. Before the legal service’s opinion was ready, Members of Parliament already expressed their expectation that the opinion would state that ACTA is in line with the current EU legislation – seen the Academics’ Opinion and INTA’s own study, a remarkable expectation. These members possibly see the legal service as an oracle – able to provide a text in which everyone sees his opinion confirmed. The formulation “open to interpretation but, on the face of it…” suggests an oracle approach.

    These Members, and the legal service, did not avoid the appearance that the legal service delivered what was asked for. Only publication of the opinion may restore the Parliament’s credibility.

    Publication of legal service’s opinions will, over time, lead to better opinions.

    6. Europeans expect transparency

    “3. Calls on the Commission and the Council to grant public and parliamentary access to ACTA negotiation texts and summaries, in accordance with the Treaty and with Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents;”

    “4. Calls on the Commission and the Council to engage proactively with ACTA negotiation partners to rule out any further negotiations which are confidential as a matter of course”

    “6. Deplores the calculated choice of the parties not to negotiate through well-established international bodies, such as WIPO and WTO, which have established frameworks for public information and consultation;”

    European Parliament resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations, P7_TA(2010)0058 (2010) [6]

    7. A cultus of secrecy

    In violation of the Treaties, the INTA committee and legal service cultivate secrecy.

    - on 13 July 2010, the coordinators of the INTA committee decided to commission an external study on the impact of ACTA on access to medicines,

    - on 25 October 2010, the coordinators decided to convert the study on “Impact of ACTA on Access to medicines (AVC)” into a fully fledged ACTA Impact Assessment,

    - on 21 June 2011, the coordinators of the INTA committee decided to ask the Parliament’s legal service an opinion on ACTA. [7]

    - all these decisions were illegal for two reasons. First, the ACTA text had already been published, the discussions should have taken place in public. Second, coordinators can prepare decisions, but can not take them,

    - the Parliament’s register and INTA secretariat denied the existence of the INTA coordinators’ minutes four times, [8]

    - the legal service keeps its opinion confidential,

    - the Committee on International Trade has on its agenda for 23 November a presentation of the legal opinion on ACTA by the EP Legal Service. This presentation will take place in camera.

    The secrecy has to stop now. The utmost transparency regime necessitates that the Parliament publishes the legal service’s opinion prior to the INTA committee meeting.

    Yours sincerely,

    Ante Wessels

    [1] http://action.ffii.org/acta/Analysis#Attachment:_The_Turco_case

    [2] http://venturebeat.com/2011/11/14/vint-cerf/

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

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

    European Commission’s services comments to the European Academics’ Opinion on ACTA.
    http://trade.ec.europa.eu/doclib/docs/2011/april/tradoc_147853.pdf

    FFII: The EU Commission lacks basic reading skills
    http://acta.ffii.org/wordpress/?p=598

    European Parliament INTA study on ACTA:
    http://www.erikjosefsson.eu/sites/default/files/DG_EXPO_Policy_Department_Study_ACTA_assessment.pdf
    http://acta.ffii.org/?p=681

    Douwe Korff & Ian Brown, Opinion on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights, 2011:
    http://rfc.act-on-acta.eu/fundamental-rights

    Oxfam Statement regarding ACTA and Public Health:
    http://www.oxfamsol.be/fr/IMG/pdf/Oxfam_ACTA_analysis_FINAL.pdf

    Public Citizen on ACTA and access to medicine:
    http://www.citizen.org/documents/Letter-to-Members-of-the-Committee-on-Legal-Affairs-on-the-ACTA.pdf

    Sean Flynn and Bijan Madhani, ACTA and Access to Medicines, 2011:
    http://rfc.act-on-acta.eu/access-to-medicines

    Internet Society:
    http://www.isoc.org/internet/issues/acta.shtml

    [4] European Digital Rights initiative:
    http://www.edri.org/edrigram/number9.20/acta-ep-legal-service-opinion

    [5] http://acta.ffii.org/?p=767

    [6] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2010-0058+0+DOC+XML+V0//EN&language=EN.

    [7] INTA coordinators’ minutes 21 June 2011 http://people.ffii.org/~ante/acta/INTA-minutes/Coordinators%27s%20minutes%202011%200621.pdf

    [8] European Parliament releases “nonexistent” coordinators’ minutes on ACTA
    http://acta.ffii.org/?p=849
    http://people.ffii.org/~ante/acta/INTA-minutes/

    Posted in EU | 2 Comments

    A partly secret ratification process… How deep do you want to sink?

    The European Parliament partly released the legal service’s opinion on ACTA, but left out the analysis on ACTA. Why?

    “Important trading partners of the EU, such as the United States, Canada, Japan, Korea and Switzerland are contracting parties to the ACTA agreement. Disclosure of the parts of the legal opinion under consideration dealing with questions 1, 2 and 3 would seriously interfere with the complex ratification procedures of the ACTA agreement and the EU’s relations with the other contracting parties, as it might prejudice the ratification procedures by these countries.”

    Really. The ACTA text is published. Everyone can now analyse it. Evidently, the analysis may show ACTA is very bad. That would jeopardize the ratification process – deservedly so. That is all in the game in a democracy. But the European Parliament is not interested in democracy, apparently.

    A partly secret ratification process… How deep do you want to sink?

    See also: Confirmatory application for legal service’s opinion on ACTA (Updated)

    In related news, today it became clear there is a parallel secret track: the Legal Affairs committee also asked for an opinion.

    Update: On 20 November I requested the minutes of the Legal Affairs Coordinators meetings dealing with ACTA, the communication between the Legal Affairs committee (Chair) and the legal service and this second legal service’s opinion on ACTA, and any other legal services’s opinions on ACTA, as soon as it is (they are) available.

    Posted in EU | 9 Comments

    7 civil society groups ask for European Parliament transparency on ACTA

    From: Raegan MacDonald
    Sent: 17 November 2011 10:43
    Subject: Need for INTA Transparency on ACTA

    Dear INTA Committee Member,

    Please find attached and below a letter from civil society — including digital rights, access to medicines, free software and human rights organisations — regarding the INTA meeting on 23 November, at which an unpublished Opinion of the European Parliament Legal Service on ACTA will be discussed in-camera.

    I am happy to discuss this particular meeting and the ACTA process more generally, so please do not hesitate to contact me directly at [TELEPHONE NUMBER] or by email at [EMAIL ADDRESS].

    Best regards,
    -Raegan MacDonald

    ——————-

    Dear Members of the Committee on International Trade,

    The undersigned signatories of this letter are a group of international civil society organisations. We are extremely concerned and disappointed by the INTA Committee’s repeated insistence on keeping the deliberations around Anti-Counterfeiting Trade Agreement (ACTA) hidden from the public.

    According to your Committee’s website,1 there will be a meeting on 23 November at 09h00 at which an unpublished Opinion of the European Parliament Legal Service on ACTA will be discussed, in-camera. This lack of transparency is a long way from the legitimate expectations of citizens, in light of how the Parliament acted in the past. The current non-transparent approach is very different from the March 2010 position taken by the European Parliament which called on the Commission to “immediately make all documents related to the ongoing international negotiations on ACTA publicly available.”

    This lack of transparency around a trade agreement which would undoubtedly affect all European citizens is in contravention with the guidance provided by Article 1 of the Treaty of the European Union. Given the implications of this plurilateral agreement to fundamental rights, international trade, access to medicines, innovation, and the integrity of the global internet,2 these conversations cannot be hidden from the public. In light of the Turco Case3 and the Committee’s obligations under Article 15 of the TFEU, we strongly object to this discussion being held in-camera.

    As a first step to creating greater transparency around discussions and the eventual consent procedure on ACTA, the signatories of this letter urge the INTA Committee to make the meeting where the Legal Service Opinion on ACTA will be discussed open to the public.

    Access
    European Digital Rights (EDRi)
    Foundation for a Free Information Infrastructure (FFII)
    Free Software Foundation Europe (FSFE)
    Health GAP (Global Access Project)
    Oxfam
    Transatlantic Consumer Dialogue (TACD)

    1 http://www.europarl.europa.eu/activities/committees/calendarCom.do?language=EN&body=INTA
    2 https://www.accessnow.org/policy-activism/press-blog/access-acta-overview-anti-counterfeiting-trade-agreement
    3 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0039:EN:HTML

    ——————-

    Source: http://lists.act-on-acta.eu/pipermail/hub/2011-November/000058.html

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