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to medicines, free software and human rights organisations — regarding the INTA meeting on 23 November, at which an unpublished Opinion of the European Parliament Legal Service on ACTA will be discussed in-camera.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According to your Committee’s website,1 there will be a meeting on 23 November at 09h00 at which an unpublished Opinion of the European Parliament Legal Service on ACTA will be discussed, in-camera.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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INTA chairman defends secrecy

On 9 November we sent the Chairman of the European Parliament Committee on International Trade (INTA), Mr Moreira, an open letter in which we protested against an INTA meeting behind closed doors on ACTA. On 10 November Mr Moreira replied.

Below you will find his letter and our reply. Mr Moreira defends the secrecy: the document is, for the time being, confidential. We maintain that secrecy is not compatible with “utmost transparency” (art 103 European Parliament Rules of Procedure).

Mr Moreira mentions a workshop on ACTA planned for March 2012 in the European Parliament, “which will provide yet another public forum to express different views on its various aspects”.

In our 9 November letter we accused the INTA coordinators and secretariat of taking illegal actions. Mr Moreira does not deny the accusations.

10 November 2011:

Dear Mr Wessels,

Thank you for your open letter. However, openness would entail including all the addressees in an open copy, enabling the reply to be sent to all of them. Unfortunately, that is not the case.

As regards, the contents of your letter, I believe there are clarifications that need to be made.

Firstly, 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 is not to be confused with an exchange of views on the ACTA file itself, which will certainly be conducted in public.

Secondly, there is a workshop on ACTA planned for March 2012 in the EP, which will provide yet another public forum to express different views on its various aspects.

Thirdly, the opinion of the Legal Service is, for the time being, a confidential document; therefore its presentation is foreseen to take place in an “in camera” part of the Committee meeting.

Fourthly, as to the question whether there is an overriding public interest in disclosure of the opinion under Regulation (EC) No. 1049/2001: under legislation in force and related jurisprudence, it is for the institution concerned to balance the interest to be protected by non-disclosure and public interest in disclosure.

Yours sincerely,

Vital Moreira

12 November 2011:

Dear Mr Moreira,

We would like to kindly thank you for your answer to our letter.

We agree that the 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)

We believe that the utmost transparency regime necessitates that the Parliament publishes the legal service’s opinion prior to the INTA committee meeting.

Our letter was also distributed by way of our press release mailing list. For reasons of privacy, we can not give you the email addresses. We will publish your letter at our blog, http://acta.ffii.org and will give it widespread distribution.

Your sincerely,

Ante Wessels

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FFII objects to secret INTA committee meeting on ACTA

(See also: press release)

Open letter
to: The Chairman of the European Parliament Committee on International Trade (INTA),

Dear Mr Moreira,

According to the agenda, the Committee on International Trade will discuss ACTA (Anti-Counterfeiting Trade Agreement) behind closed doors on 23 November. [1] We object to this discussion being held behind closed doors. Since the publication of the ACTA text, discussions have to take place in public.

ACTA’s predecessor, the TRIPS agreement, killed millions of people. 500 Million Europeans, and billions abroad, are entitled to full transparency.

On 23 November the INTA committee will discuss the confidential European Parliament legal service’s opinion on ACTA. There is an overriding public interest in disclosure of this document (compare European Court of Justice Turco case). Prior to the meeting, the opinion should be released in a timely manner. The committee can then discuss the opinion in public.

The legal service’s opinion goes against the academic communis opinio (see below). 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. It does not provide a public justification.

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. The legal service fails to comply with this standard. We suggest to withdraw the legal service’s opinion.

= Prior discussion

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. Health groups pointed out ACTA harms access to medicine. The Commission’s response to the critique was very weak. In one case, the Commission actually even states it insisted ACTA would go further than current EU legislation. A study commissioned by the INTA committee evaluated the prior discussion, and concluded that ACTA indeed goes beyond the current EU legislation. After that, fundamental rights experts confirmed ACTA violates a list of fundamental rights. An academic study confirmed ACTA harms access to medicine. [2]

Let’s take one example. In EU law, damages are based on actual loss suffered, including lost profits. ACTA goes beyond actual loss. Civil society, prominent academics and the INTA study pointed this out.

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.” [3]

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.

= 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 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 European discourse on ACTA. It seems to fear scrutiny.

There is an overriding public interest in disclosure of this document (compare European Court of Justice Turco case). [5]

= The legal service is the Parliament’s house lawyer

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, 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.

= Illegal request

On 21 June 2011, the coordinators of the INTA committee decided to ask the Parliament’s legal service an opinion on ACTA. [6] This decision was illegal for two reasons. First, the ACTA text had already been published, the discussion should have taken place in public. Second, coordinators can prepare decisions, but can not take them.

Withdrawing the opinion may provide the best way out. The INTA committee can then ask, after a public discussion, for a public legal service’s opinion on ACTA, which has to take into account the prior discourse on ACTA. Asking the European Court of Justice an opinion on ACTA is a better option.

= 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,

- we already mentioned the coordinators’ decision to ask the Parliament’s legal service an opinion on ACTA,

- 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, [7]

- the legal service keeps its opinion confidential,

- on 23 November 2011, the INTA committee plans another meeting behind closed doors.

Yours sincerely,
on behalf of the Foundation for a Free Infrastructure,

Ante Wessels

This letter on line: http://acta.ffii.org/?p=853

[1] Agenda INTA meeting 23 November:
http://bit.ly/vaHP2z

[2] 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

[3] see above: Douwe Korff and Ian Brown, 2011

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

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

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

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

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European Parliament releases “nonexistent” coordinators’ minutes on ACTA

The European Parliament’s register released the International Trade (INTA) committee’s coordinators’ minutes on ACTA (Anti-Counterfeiting Trade Agreement). Prior to the release, the Parliament’s services denied the existence of these minutes four times. Only after the FFII provided proof that the documents do exist, the Parliament released them. The minutes document illegal decisions.

On 21 June 2011, the coordinators of the INTA committee decided to ask the Parliament’s legal service an opinion on ACTA. (pdf) This decision was illegal for two reasons. First, the ACTA text had already been published, the discussion should have taken place in public. Second, coordinators can prepare decisions, not take them.

The INTA committee’s Chairman, Mr Moreira, sent a letter to the legal service. In the letter, he left out a question on safeguards against disproportional criminalisation. While known in Parliament, no Member took action to solve this.

On 8 July, the FFII requested both the Chairman’s letter and the coordinators’ minutes. The Parliament’s services denied the existence of the minutes four times.

On Friday 23 September, Member of Parliament Carl Schlyter (Greens / EFA) wrote a letter to the Chairman of the INTA committee about the missing question. He referred to the coordinators’ minutes and mentioned the file name. The INTA Chairman sent a second letter to the legal service. (pdf)

On 5 October, in an email to the INTA committee’s secretariat, the FFII referred to MEP Schlyter’s letter, and argued that since the ACTA text had already been published, the discussion should have taken place in public. The FFII also stated that EU law does not provide a possibility to deny or obfuscate the existence of documents. The FFII urged the secretariats to record all existing documents in one of the EP document management systems, so that the register can provide correct information from the start.

The FFII added: “The conclusion seems justified that the European Parliament violated the Rules of Procedure, the Treaties and the Charter of Fundamental Rights of the European Union.”

On 25 October, the register released the minutes.

The legal service’s opinion on ACTA is ready, but confidential. The confidentiality seems a violation of the European Court of Justice case law, especially the Turco case.

The FFII requested the legal service’s opinion on ACTA. A better solution may be to withdraw the opinion, since it is based on an illegal decision. The INTA committee can then ask, after a public discussion, for a public legal service’s opinion on ACTA. 500 Million Europeans, and billions abroad, are entitled to full transparency.

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No fair use in ACTA

When the European Parliament adopted its position on the proposed EU draft directive on criminal sanctions they also included the following safeguards, a fair use provision.

Member States shall ensure that the fair use of a protected work, including such use by reproduction in copies or audio or by any other means, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, does not constitute a criminal offence.

The MEPs also amended the proposal from the Commission on the matter of parallel importation:

Criminal sanctions shall not be applied in cases of parallel importation of original goods which have been marketed with the agreement of the right-holder in a country outside the European Union.

As announced in Official Journal C 252 of 18 September 2010 the European Commission decided to withdraw their proposal for a Directive on the criminal enforcement of intellectual property rights because member states didn’t want to adopt it. In particular the Dutch parliament notified the Commissioner Frattini that the EU lacks competence to adopt these measures. Criminal sanctions for enforcement these rights therefore did not become part of the EU acquis.

ACTA provides for criminal sanctions but does not include a “fair use” provision.

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Negotiator’s notes on ACTA

The European Commission released the (final) negotiator’s Notes on ACTA on 6 October 2011.

Request for access to documents – Gestdem 2011-4206

Dear Mr Wessels,

I refer to your request of 1 August, 2011 in which, you ask to receive the Commission’s Negotiator’s Notes on ACTA.

As regards the so-called “negotiators’ notes”, let me first clarify their nature. “Negotiators’ Notes” have been added in the evolving versions of the draft negotiating text (the “consolidated” text) as footnotes. These “Negotiators’ Notes” varied considerably in content: some were mere reminders for a verification of the coherence of language at the final “legal scrub” or for the applicability of a certain definition already used somewhere else in the text, while others were added to reflect the interpretation that one or more Parties had of a certain concept. They also changed from one round of negotiations to the next, as issues were clarified or Parties made alternative proposals or accepted new compromises.

In the text agreed at the end of the final round, 10 such “Negotiators’ Notes” remained. Five of them referred to clerical issues that were addressed subsequently when the text was “legally scrubbed” to become the definitive version. Regarding the other five, all referring to Article 2.18 of the ACTA text released on 6 October 2010, (which became Article 27 ACTA in the definitive text) there was no consensus among the Parties to adopt them as footnotes to the Agreement, therefore they are not part of the ACTA. Consequently, the “Negotiators’ Notes” that remain, may have mere interpretative value to help understand the negotiators’ views about certain parts of the Article in question.

The “Negotiators’ Notes” which remained in the final version of ACTA were the following (for ease of reference, the Article numbers and page numbering mentioned below are those of the ACTA text of 6 October 2010, available at:
http://trade.ec.europa.eu/doclib/docs/2010/october/tradoc 146699.pdf)

1. Page 2, referring to the first sentence of the recitals “The Parties to this Agreement”: “Negotiator’s Note: insert footnote in Article 6.1 of list of negotiating parties.”

2. Page 9, referring to the heading “Article 2.X: Small Consignments and Personal Luggage”: “Negotiator’s Note: To be checked in legal scrub. ”

3. Page 12, referring to the first sentence of Article 2,13 “Without prejudice to a Party’s laws pertaining to the privacy or confidentiality of information”: “Negotiator’s note: legal scrub pending. ”

4. Page 12, referring to the heading “Section 3: Criminal Enforcement”: “Negotiator’s Note: Definitions of “counterfeit trademark goods” and “pirated copyright goods” provided for in footnotes [ ] and [ ] of Section 2 (Border Measures) should be used as context for this Section. ”

5. Page 13, referring to the sentence in Article 2.14.2(a) “to which a mark has been applied without authorization which is identical to or cannot be distinguished from a trademark registered in its territory; and”: “Negotiator’s Note: To be checkedin legal scrub.”

6. Page 16, referring to Article 2.18.5 and .7: “Negotiator’s Note: “Rights” in paragraphs (5) and (7) reflect WPPT and WCT standard.”

7. Page 16, referring to Article 2.18.6: “Negotiator’s Note: As used in paragraph 6, the term “computerprograms” can be understood to encompass software.”

8. Page 16, referring to Article 2.18.6(a): “Negotiator’s Note: “To the extent provided by its law” means that Parties have flexibility in implementing paragraphs 6(a) (i) and (it).”

9. Page 16, referring to Article 2.18.6(b)(ii): “Negotiator’s Note: As used in paragraph 6(b), the word “purpose” can be interpreted as the function of the device, or product, including computerprograms or software, or the provision of a service.”

10. Page 16, referring to the footnote 24 to Article 2.18.6(b) (ii): “Negotiator’s Note: The intention of this provision is that this Agreement does not require a Party to mandate interoperability in its law, i.e., there is no obligation for the ICT (Information Communication Technology) industry to design devices, products, components, or services to correspond to certain technological protection measures. ”

We hope this letter and information will meet your needs. I also take the opportunity of reminding you that the enclosed documents cannot be reproduced or disseminated for commercial purposes unless the Commission has first been consulted.

Yours sincerely,

Anders C JESSEN
Head of Unit

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FFII requests European Parliament’s Legal Services’ opinion on ACTA

The European Parliament’s Legal Services’ opinion on ACTA is ready. And it is secret! Not only that, according to rumors in Parliament, it is positive about ACTA. So we have prominent academics and fundamental rights experts pointing out problems with ACTA, and then in a secret opinion the Parliament’s Legal Services says it is fine. This is very strange, since the earlier opinions were excellent.

So we do not have access to a secret opinion which will be used by proponents to say everything is fine. The opinion may be very influential in Parliament. This can not be taken seriously. A secret opinion on a public text which has been analysed in public by some of the brightest minds in Europe.

The secrecy seems in violation of the ECJ Turco case. The FFII filed a request for documents.

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The European Parliament services denied the existence of ACTA documents four times

The European Parliament services denied the existence of INTA coordinators’ minutes (regarding ACTA) four times. Under EU law, Institutions can refuse access to documents in some cases. But EU law does not provide a possibility to deny or obfuscate the existence of documents. See our 5 October letter to the INTA secretariat.

Dear INTA secretariat,

I would like to kindly thank you for your elaborate answer to my request for information and documents. However, there are still some issues.

As you know, I could not find any written documentation for the decisions to request a legal opinion of the Parliament’s Legal Service and to commission an external study. New information is now available.

On Friday 23 September 2011, MEP Carl Schlyter wrote to the Chairman of the INTA committee:

Quote

Dear Chair Mr Moreira, after the debate over ACTA it was found necessary to revise the first version of the Coordinators’ Minutes as to it’s content and conclusion of the debate. Unfortunately it seems that a confusion over content, rather than the revision itself, has propagated into the to the request to the Legal Service which was the object of the discussion.

A comparison of the Minutes with your letter to the Legal Service finds that the INTA Coordinators’ explicit reference to IPRED2 is unfortunately omitted. The Coordinators’ Minutes says (quoting from final version INTA(2011)0621_2): “Decision: [...] to ask the Legal Service for a legal opinion that should point to:[...] * regarding criminal measures in relation to the conditions set by the European Parliament, in its position of 25 April 2007 on the IPRED2 proposal of the Commission ”

End quote

On 28 July, the Register informed me: “No separate minutes for the Coordinators meetings exist”. On 5 August the Register wrote: “The right to submit a confirmatory application only applies in the event of a total or partial refusal. We did not mention the possibility of a confirmatory application because we did not send you a formal refusal. We sent you the link where to find certain documents requested or we informed you that other documents did not exist.” On 17 August the Register wrote: “Perhaps we should have included the following main elements in bold: The right to submit a confirmatory application only applies in the event of a total or partial refusal. We did not mention the possibility of a confirmatory application because we did not send you a formal refusal. We sent you the link where to find certain documents requested or we informed you that other documents either did not exist or the Parliament does not possess copy of them.”

These statements now turn out to be wrong. MEP Schlyter mentions “Coordinators’ Minutes” and provides a document name.

The INTA committee secretariat knows the coordinators’ minutes do exist. Yet you wrote me: “Given the nature of these meetings, there is no related, written information or documentation to provide.”

Under EU law Institutions can refuse access to documents in some cases. But EU law does not provide a possibility to deny or obfuscate the existence of documents. The INTA secretariat did just that. I urge the secretariats to record all existing documents in one of the EP document management systems. Then the Register can provide correct information from the start. Then the public can appeal against decisions to keep documents confidential.

The coordinators’ minutes contain essential information that should have been shared with the public. They reveal an error the Chairman of the INTA committee made. Everyone can make a mistake, also for this reason transparency is important.

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

Furthermore, the discussions on requesting a legal opinion of the Parliament’s Legal Service and on commissioning an external study could and should have taken place in public.

Annex VIII.A. of the Rules of Procedure does not apply, since the ACTA text had already been published at the time the decisions were made.

Rules of Procedure 103 (Transparency of Parliament’s activities) says: “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.”

The conclusion seems justified that the European Parliament violated the Rules of Procedure, the Treaties and the Charter of Fundamental Rights of the European Union.

I first requested the documents on 8 July 2011. I note that I have filed two confirmatory applications already.

I would like to receive, within 15 days, the requested documents, specifically including final version INTA(2011)0621_2 and all other versions of this document.

I would like to receive, a new request, further communication between the (Chairman of the) INTA Committee and the Legal Services, for instance in case MEP Schlyter’s request did lead to a new / updated request to the Legal Services.

Yours sincerely,

Ante Wessels

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FFII urges EP Civil Liberties Committee to formulate opinion on ACTA

Today, the FFII sent a letter to the members of the European Parliament Civil Liberties Committee:

Dear Members of the Civil Liberties Committee,

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

A group of prominent European academics published an opinion on ACTA. They conclude that certain ACTA provisions are not entirely compatible with EU law and will directly or indirectly require additional action on the EU level. They invite “the European institutions, in particular the European Parliament, and the national legislators and governments, to carefully consider the above mentioned points and, as long as significant deviations from the EU acquis or serious concerns on fundamental rights, data protection, and a fair balance of interests are not properly addressed, to withhold consent.” [1]

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

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

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

Yours sincerely,

Ante Wessels
Foundation for a Free Information Infrastructure

Attachment

SUMMARY & CONCLUSIONS

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

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

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

THE RIGHT TO FREEDOM OF EXPRESSION AND INFORMATION:

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

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

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

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

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

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

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

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

Re “Three strikes” and extended ISP liability:

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

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

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

THE RIGHT TO PROTECTION OF PERSONAL DATA:

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

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

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

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

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

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

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

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

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

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

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

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

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

Re Criminal law enforcement of IPR under ACTA:

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

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

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

Re “Privatisation” of IPR law under ACTA

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

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

Overall, ACTA tilts the balance of IPR protection manifestly unfairly towards one group of beneficiaries of the right to property, IP right holders, and unfairly against others. It equally disproportionately interferes with a range of other fundamental rights, and provides or allows for the determination of such rights in procedures that fail to allow for the taking into account of the different, competing interests, but rather, stack all the weight at one end.

This makes the entire Agreement, in our opinion, incompatible with fundamental European human rights instruments and -standards.

Douwe Korff & Ian Brown

Cambridge/London Oxford

8 October 2011

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

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

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

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

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

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ACTA violates fundamental rights

Professor Douwe Korff, London Metropolitan University, and Ian Brown, Senior Research Fellow, Oxford Internet Institute, University of Oxford, prominent fundamental rights experts, wrote an elaborate study on ACTA, they conclude ACTA violates fundamental rights. Their conclusions are rather devastating:

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

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

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

THE RIGHT TO FREEDOM OF EXPRESSION AND INFORMATION:

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

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

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

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

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

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

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

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

  1. Re “Three strikes” and extended ISP liability:

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

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

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

THE RIGHT TO PROTECTION OF PERSONAL DATA:

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Re Criminal law enforcement of IPR under ACTA:

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

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

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

  1. Re “Privatisation” of IPR law under ACTA

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

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

Overall, ACTA tilts the balance of IPR protection manifestly unfairly towards one group of beneficiaries of the right to property, IP right holders, and unfairly against others. It equally disproportionately interferes with a range of other fundamental rights, and provides or allows for the determination of such rights in procedures that fail to allow for the taking into account of the different, competing interests, but rather, stack all the weight at one end.

This makes the entire Agreement, in our opinion, incompatible with fundamental European human rights instruments and -standards.

You may enjoy the press conference.

See also

Computerworld: Legal expert says ACTA should be scrapped
and Axel H. Horns: Epic Battle On Ratification Of ACTA Is Looming

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