A Vienna loophole of ACTA for the United States

Question for written answer to the Commission, Françoise Castex (S&D): ACTA

Article 1.2 of the proposed Anti-Counterfeiting Trade Agreement (ACTA) states the following: ‘Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.’

At recent meetings in Washington the US Trade Representative has told other US agencies, NGOs and legislators that ACTA is not binding and that its Article 1.2 allows for complete flexibility in respect of any US legal provision that might contradict ACTA.

Indeed, Articles 2.2 and 2.X of ACTA, which deal with damages and injunctions respectively, are at odds with the ‘US Affordable Care Act’, which places clear limits on remedies for infringements of patents on medicines. Nevertheless, the US authorities deny that ACTA requires a change in US law.

Could the Commission clarify to what degree ACTA is a binding or voluntary agreement, given that the US apparently does not believe its laws must be consistent with ACTA? [...]

Commissioner De Gucht on behalf of the Commission (15.12.2010, P-9179/10EN)

The Anti-Counterfeiting Trade Agreement (ACTA) is a binding international agreement on all its parties, as defined and subject to the rules of the Vienna Convention on the Law of Treaties (1969). [...]

Important to know

The USA did not ratify the Vienna Convention on the Law of Treaties.

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De Gucht and his giant ACTA lie

For the past past months Commissioner Karel De Gucht cheated the Members of the European Parliament about the lack of competence of the European Union to negotiate ACTA criminal measures, and overplayed the known fact in Plenary that there is no related Acquis existing. Many Members of Parliament trust De Gucht’s promises made that ACTA fully complies with the Acquis. Compliance with the Acquis was an argument for MEPs like German Daniel Caspary to support the controversial Treaty.

I think it is a good thing that the acquis communautaire remains unchanged.

Now Karel De Gucht is forced to admit that there is no criminal Acquis of the European Union existing and member states have to adapt their law when ACTA gets concluded.

Karel De Gucht answered (P-9179/10EN 15 Dec 2010):

On one area covered by ACTA on which there is no EU acquis, i.e. penal enforcement, it is possible that some Member States may need to adapt domestic legislation to comply with commitments they have undertaken in the negotiation of the ACTA section on penal enforcement. This section was negotiated by the rotating EU Presidency on the behalf of the Member States. However, the Commission wishes to stress that this does not concern EU legislation, since penal enforcement of Intellectual Property Right infringements is an area that is not yet harmonised in the European Union, and is still subject to the domestic legislation of Member States. In other words, there is no “EU acquis” in this area.

The acquis communautaire remains unchanged as there is no European acquis existing. That is an interpretation where you can assume that not all MEPs were able to get the cynical trick.

ACTA Criminal Chapter is like IPRED2 without a role for the European Parliament

What is interesting about the criminal sanctions in ACTA (that he admits effects changes of member states’ criminal laws) is that there is a legal base in the Treaty for harmonization of such criminal sanctions within the EU which would give Parliament much more say than a conclusion of ACTA, namely the “ordinary legislative procedure” for Council and Parliament as envisaged by Article 83(2) TFEU. With the very legal base an EU acquis for criminal sanctions for IPR infringements would then be created.

A pending legal proposal for IPR criminal sanctions from the European Parliament, known as IPRED2, was withdrawn by the Commission recently because member states failed to reach consensus for years. Now ACTA provides for the criminal sanctions but without the safeguards (e.g. Fair Use provision) proposed by the European Parliament and without any say of the European Parliament on the contents of the changes to national laws.

With other word, ACTA circumvents the new Lisbon competences of the European Parliament. The criminal chapter of ACTA corresponds to IPRED2 without a role for the European Parliament, without transparency and is negotiated outside the treaties.

The question remains if it is legally possible to circumvent the Treaties ordinary legislative procedures by trade agreements with third nations, and the European Court of Justice should be asked for an opinion on the matter.

In Frankfurter Allgemeine Commissioner De Gucht explained the anti-democratic trick with trade agreements of legislative nature:

Das Parlament wird über den Fortgang der Verhandlungen informiert und kann dann am Ende “ja” oder “nein” sagen, mehr nicht. Das ist bei internationalen Verhandlungen in allen Staaten so.
Parliament is informed about the progress of the negotiations and may tell in the end “yes” or “no”, nothing more. That common for all international negotiations in all states.

The procedure for the member states to negotiate penal sanctions in absence of an EU Acquis stays obscure. Acoording to rumours criminal sanctions were negotiated by the Council Presidency together with a “Friends of the Presidency” group. To MEP Ska Keller the Commissioner De Gucht explained the procedure in more details (P-9029/2010 30 Nov 2010):

“ACTA addresses issues that are unquestionably exclusive competences of the European Union. Therefore, the Commission needed to seek negotiating authorisation and negotiating directives from the Council in order to negotiate the Agreement. At the time the Commission sought authorisation, a debate took place with Member States as to the conduct of negotiations on certain aspects of the agreement dealing with the enforcement of intellectual property rights through criminal procedures. In April 2008, the Council authorised the Commission to negotiate ACTA, pursuant to the then Article 133 of the EC Treaty (now Article 207 TFEU) and agreed that the rotating Presidency of the EU, on behalf of the Member States, would fully participate in the negotiations on matters falling within Member States competence. Such matters included the type and level of criminal penalties to be applied by ACTA parties for infringements of intellectual property rights and dispositions on penal procedural law, but not provisions on aiding and abetting.”

Have a look at Article 207 TFEU and check for yourself if there is a legal base for negotiating criminal sanctions for IPR infringement with other nations. It casts doubts whether criminal sanctions concern the “commercial aspects of intellectual property”. But apparently criminal measures are negotiated outside a legal base in the treaties by the rotating presidency. Criminal harmonisation within the EU framework would bound by Article 83(2) limits.

A few questions to the European Council members (under the premise that Art 207 is not a sufficient legal base and nations act as souvereign powers):

A. Is criminal harmonisation beyond the EU framework by EU member states, acting as souvereign powers  represented by the rotating EU Presidency, permissable?

  • Is prior harmonisation within the EU framework under Article 83(2) a prerequisite for negotiations beyond the EU framework?
  • How does a delegation of national representation powers to the rotating presidency work?
  • Are negotiations beyond the EU bound by the same limitations and principles as Article 83(2)?
  • Is it possible to mix acquis/EU related and souvereign powers in a single agreement and in the Article 207 environment?

B. If member states failed to agree on the IPRED2 criminal harmonization as presented by the European Parliament because they don’t want EU interference in their diverse national criminal laws why do they presumably agree with ACTA criminal measures? How is the contradiction explained?

C. Is it possible to generally circumvent the European Parliament prerogatives under the Lisbon Treaty, their powers within the “ordinary legislative procedure” by concluding  “Trade Agreements” of legislative nature instead between the Council member states and a nation X. Nation X beeing e.g. Switzerland, Liechtenstein, Norway or the Democratic Republic of Bananas.

Posted in Criminal, Democracy, EU | 6 Comments

Metzger: Criminal sanctions beyond ‘may’ outside Acquis.

Intellectual Property Watch quotes Axel Metzger, University Hannover:

“All criminal sanctions that go beyond ‘may’ clearly are outside of the EU acquis,” Metzger said.

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Beyond Wikileaks: How to get legal access to ACTA documents

In a Guardian interview this week Wikileaks founder Julian Assange stressed the importance of their disclosure of the secret Anti-Counterfeiting Agreement (ACTA). European observers do not have to rely on leaks because public transparency is a right of citizens under the Lisbon treaty.

You can request legal access to ACTA related documents from the Council. Either documents are available through the register or for the confidential ones just fill out a form with your address and mention the requested document numbers. The Council will either enable public access to the documents and sent you a pdf or deny your request and state reasons for that or they sent you a crippled, a redacted version. If your request is refused you can file a confirmatory application and when that is denied again, you can go to court or complain at the EU ombudsman. In the case of ACTA the confidentiality at the Council was so rigid. Many first applications were rejected which is quite unusual. Therefore there are quite some confirmatory requests for public access to ACTA documents in the document archive of the Council, here is a recent confirmatory application:

[Confirmatory application sent by e-mail on 22 November 2010 - 13:39]
Dear Mr Thomsen,
I hereby submit a confirmatory application in case 10/2076-nh/ank, on the following grounds:

I. The European Parliament has now called on the other institutions to allow public access to ACTA documentation on at least four occasions, in resolutions and by a written declaration. It therefore seems a foregone conclusion that there is no justification for assuming a “public interest” in keeping this documentation confidential. The Article 207 procedure is specifically required to abide by the principles set out in Article 21 of the EU Treaty; the public interest must therefore be defined on a democratic basis, and the best way of doing that is through parliament.

II. As you will be aware, criminal provisions for the enforcement of intellectual property rights are not part of the acquis at present.

Where such provisions are needed at European level, the “ordinary legislative procedure” has to be followed, with due regard for the specific conditions of Article 83(2) TFEU, to incorporate criminal sanctions into the acquis.

The Member States would first be required to harmonise criminal enforcement in Europe by European law. Given this “gap” in the acquis, negotiating criminal sanctions in this area with third countries may well be in breach of the Treaties and fails to take account of the European Parliament’s prerogatives. It may be that Article 207 TFEU does not provide a proper legal basis for negotiations of this type with third countries. Legislation on enforcement, especially in criminal matters, goes beyond “commercial aspects of intellectual property” within the meaning of Article 207. Member States are not allowed to “change forum” by bringing in third countries, undermining the European Parliament’s extended powers post Lisbon.

In the European Parliament recently, Trade Commissioner De Gucht claimed that the term acquis applied only to substantive law, as if implementing legislation such as Directive 2004/48/EC were not part of the acquis. He said that the ACTA was “about the enforcement of existing law, and that is why I have repeatedly stipulated that we are not going to change the acquis communautaire. The acquis communautaire is about substantive law and we are not changing that.” In other statements the Trade Directorate confuses the corpus of existing EU law (acquis communautaire) with the question of European treaty options for EU legislation. This curious understanding of the law on the part of the Commission shows the need for scrutiny, for which transparency about the conduct of the negotiations is essential. It is particularly unclear on what legal basis the Council Presidency is conducting negotiations on criminal sanctions.

There is therefore considerable public interest in uncovering any abuse of authority or any Treaty violation in this case. Protecting the public interest in regard to international relations outweighs the institutional interest in concealing the fact that the Presidency does not have the authority to conduct these negotiations. Conducting negotiations without having an adequate basis in the European Treaties is prejudicial to the EU’s international relations and transparency is needed to clarify these practices. The question whether Europe is conducting these negotiations legally can only be answered by looking at the documents.

If there were no proper negotiating remit, this would adversely affect the atmosphere of trust in future negotiations with third countries and hamper open and constructive cooperation.

III. Article 15(1) TFEU places a duty on the institutions to be as open as possible. Article 15(2) applies to the Council and its Presidency. There is no legal basis in the Treaties for withholding information or for concluding confidentiality agreements with third countries. The requirement for openness under Article 15(2) and (3) takes precedence, particularly in legislative matters. These are purely legislative issues, being pursued under the cover of a trade agreement in form, but not in substance. It is clear from the outset that there is no basis in the EU Treaties for holding secret legislative negotiations with third countries. Retrospectively applying Article 4 of Regulation (EC) No 1049/2001 (which has not yet been adjusted to the Lisbon arrangements, by the way) does not make up for the fact that there is no basis in law for keeping these negotiations confidential.

The classification of documents is irrelevant for the purposes of Article 15 of Regulation (EC) No 1049/2001. Furthermore, the Council can always withdraw its negotiating directives and terminate the negotiations if third countries make procedural requests which would prevent the Union from complying with the EU Treaty, in particular rights under Article 15 TFEU.

IV. Apart from genuine trade agreements, it is not usual for international legislative or regulatory dialogue to be kept confidential. It is customary for negotiations to be open in the case of legislative agreements, since disclosure of the entire negotiating history is essential for subsequent interpretation of the law (“historical method of interpretation”). Under Article 25 of the German Basic Law, the general rules of international law form an integral part of federal law and are therefore relevant to the Presidency’s representation of Germany. The principles of Article 21 of the EU Treaty in conjunction with Article 207 TFEU apply.

I would therefore ask you to reconsider your opinion.

Yours sincerely

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Europe’s e-communications providers call on the EC not to modify the acquis

Europe’s e-communications providers call on the European Commission to reflect EP demand for ACTA not to modify the EU acquis – Europe’s leading e-communications service providers welcome the efforts of both the
European Parliament and the Commission to address concerns regarding the potentially negative impact of
the Anti-Counterfeiting Trade Agreement on the EU citizens’ rights and on the existing balance between
IPR enforcement and user’s privacy.

Press release of CableEurope, ETNO, EuroISPA,GSMA

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FFII expression of concerns with ACTA

Letter by Ante Wessels, FFII, to members of the European Parliament:

Dear Members of the European Parliament,

We are writing to express our concerns with the Anti-Counterfeiting Trade Agreement

Contrary to Commission statements, ACTA is inconsistent with the EU acquis. Moreover, by still including patents and harsh criminal measures, ACTA threatens legitimate businesses as detailed below. We urge the European Parliament to exclude patents from the scope of ACTA and to obtain the opinion of the Court of Justice as to whether ACTA is compatible with the Treaties.

ACTA is inconsistent with the EU acquis. The most explicit example regards Council Regulation (EC) No. 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights (BMR). With regards to trademark goods, the BMR is limited to counterfeit goods. ACTA’s border measures section is, with regards to trademark goods, not limited to counterfeit goods. This has implications on access to medicine. [1] A second example regards damages. ACTA’s damages (suggested retail price) are higher than the acquis, the EU Enforcement Directive sets damages as lost profit or royalties. [2] Especially in combination with the Union patent, which will make litigation more profitable, we may see, in the ICT sector, the same patent litigation battlefield in Europe as in the United States. This will be harmful for European SMEs. [3] We believe an independent assessment on the relationship between ACTA and the EU acquis is needed.

Interestingly, the United States, long time ardent supporter of stronger enforcement, will exclude patents from the scope of ACTA. This will give the US the freedom to fine tune it patent enforcement regime. The EU will not have this freedom. Inclusion of patents in ACTA does not only lead to problems in the ICT sector. It also harms access to medicine and diffusion of green technology. The inclusion of patents in ACTA endangers European SMEs, innovation, technology transfer and human lives. We urge the Parliament to fully exclude patents from the scope of ACTA.

ACTA’s criminal measures section is not limited to large scale activities, does not contain a de minimis exception, does not contain other exceptions and also covers companies and individuals. ACTA can be used to criminalise newspapers revealing a document, office workers forwarding a file and private downloaders. [4]

ACTA already contains harsh civil and border measures, we seriously doubt the necessity and proportionality of adding intrusive criminal measures (beyond the TRIPS agreement). We urge the European Parliament to obtain the opinion of the Court of Justice as to whether ACTA is compatible with the Treaties.

Yours sincerely,

Ante Wessels
Foundation for a Free Information Infrastructure

[1] http://acta.ffii.org/wordpress/?p=205

[2] http://people.ffii.org/~ante/acta/acta-acquis2.pdf

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

[4] http://acta.ffii.org/wordpress/?p=34

Posted in EU, FFII, Medicines | 2 Comments

Jędrzejewska (PL, EPP): ACTA

Parliamentary questions 17 August 2010 E-6483/2010
Question for written answer to the Commission  Rule 117
Sidonia Elżbieta Jędrzejewska (PPE)


The views expressed on the negotiations being conducted by the Commission regarding the Anti-Counterfeiting Trade Agreement (ACTA) often stress the high degree of secrecy surrounding the talks. Bearing in mind the provisions of the Treaty on the Functioning of the European Union requiring the European Parliament to be kept informed of any discussions conducted by the Commission in the context of its powers under Title V of that Treaty, and in the light of the written questions previously tabled: 1. Will the Commission initiate a dialogue with the European Parliament on the question of ACTA and, if so, when?
2. Does it consider that the conclusion of an agreement between the EU and ACTA should replace the agreement concluded between the European Union and the World Intellectual Property Organisation (WIPO) under the WIPO Copyright Treaty adopted in Geneva in 1996?
3. On the basis of the negotiations so far conducted, can it be assumed that under the terms of the agreement with ACTA, Internet access and similar service providers will be required to disclose the identity of users to copyright holders?
4. How will the substance and legal effects of any agreement fit in with European information society policy?

14 October 2010 E-6483/2010 Answer given by Mr De Gucht on behalf of the Commission

1. The Commission regularly keeps Parliament informed on the progress of the negotiations particularly through the Committee on International Trade (INTA). Trade Commissioners, as well as the Trade Director-General, have addressed this issue numerous times in the last three years in regular meetings of the INTA Committee, in the Committee on Civil Liberties, Justice and Home Affairs (LIBE), as well as in Plenary (9 March 2010 and 8 September 2010). In addition, the Commission has provided several dedicated briefings to interested Members of Parliament and their staff on all aspects of the negotiations in the course of 2010, and especially after each negotiating round, to inform Parliament on the latest state of play and to exchange views (the last such meeting was held on 1 September 2010 in Brussels, as was an informal debriefing on the results of the 10th round of ACTA negotiations).

Moreover, the Commission has provided Parliament, through the INTA Committee, with all the relevant negotiating documents in line with the framework Agreement between the Commission and Parliament.

2. ACTA will only address enforcement measures. It will not include provisions modifying substantive Intellectual Property (IP) law, such as the creation of new IP rights or the definition of their duration, scope of protection, registration, etc. Consequently, ACTA will not replace any agreement concluded under the auspices of the World Intellectual Property Organisation.

3. As stated by the Commissioner responsible for Trade in Plenary on 9 March 2010 and on 8 September 2010, the Commission will ensure that ACTA is in line with the current level of harmonisation of Intellectual Property Rights (IPR) enforcement. There will be no indirect harmonisation of EU legislation through the ACTA agreement. Therefore, the EU position in the ACTA negotiations will reflect the European acquis in the area of IPR enforcement and any measure which concerns Internet service providers and, inter alia, disclosure. These EU measures are, in particular, Directive 2001/29/EC (Copyright in the Information Society Directive)(1), Directive 2004/48/EC (Enforcement of IPR Directive)(2); the relevant Data Protection Directives (Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic communications sector privacy which complements Directive 95/46/EC)(3), the directive on electronic commerce (Directive 2000/31/EC)(4) and, where applicable, the provisions of the regulatory framework for electronic communications (including Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services)(5).

4. The Commission is committed to ensuring full compliance of ACTA with, inter alia, the EU measures referred to above and also its policies aimed at supporting the development and the competitiveness of the European Digital Economy. As a result, ACTA will not create obstacles to the emergence and to the provision of Information Society Services in Europe.
(1) Directive 2001/29/EC of Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 22.6.2001.
(2) Directive 2004/48/EC of Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004), OJ L 195, 2.6.2004.
(3) Directive 2002/58/EC of Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), OJ L 201, 31.7.2002.
(4) Directive 2000/31/EC of Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’), OJ L 178, 17.7.2000.
(5) Directive 2002/21/EC of Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), OJ L 108, 24.4.2002.

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Carl Schlyter (SE,Greens): Injunction powers going beyond those provided for in the EU acquis

Parliamentary questions
20 October 2010 H-0541/2010

Question for Question Time
to the Commission
Part-session: November 2010
Rule 116
Carl Schlyter (Verts/ALE)

Subject: ACTA – injunction powers going beyond those provided for in the EU acquis

In the Civil Enforcement section of the Anti-Counterfeiting Trade Agreement (ACTA), paragraph 1 of Article 2.X: Injunctions allows judicial authorities to issue an order (injunction) against a party, or a third party, to ‘prevent infringing goods from entering into the channels of commerce’. This injunction power is considerably different from that existing under the EU acquis (Article 9 of the Intellectual Property Rights Enforcement Directive (Directive 2004/48/EC)), which permits injunctions ‘to prevent any imminent infringement’. Furthermore, the third parties need to be involved in the infringement (‘against an intermediary whose services are being used’). The ACTA text essentially eliminates the thresholds for injunction powers that exist under the EU acquis.

Given that, by laying down the thresholds for injunctions, the EU acquis has struck a delicate balance between enforcement and fundamental rights safeguards, how will the Commission ensure that these safeguards under the current EU acquis are maintained?

How will the Commission safeguard the thresholds currently provided for in the EU acquis?

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ACTA includes confusingly similar trade mark goods

The latest text of ACTA includes confusingly similar trade mark goods. This is bad for access to essential medicines.

In an answer to a parliamentary question, the EU Commission wrote: “b) on the inappropriate seizures of medicines on the strength of mere allegations that trademarks are similar – the introduction of the concept of “confusingly similar trademark is proposed by one of the ACTA partners but not supported by any of the other;”

But ACTA lacks a clear footnote like footnote 27 in the EU – Korea free trade agreement, limiting “goods infringing an intellectual property right” to “(a) counterfeit goods (…)”.

ACTA’s criminal measures are limited to counterfeit goods (as far as trademarks are concerned). Some of the civil trademark measures are limited to counterfeit goods. But ACTA’s Chapter 2 section 3 on border measures is not limited to counterfeit goods. ACTA’s border measures regard suspect goods (art 2.X.1, page 10), and the test is whether the suspect goods infringe an intellectual property right (article 2.10, page 11). In the border measures section, only article 2.11.2 refers to “counterfeit trademark goods”, all other articles refer to “suspect goods”, which are goods that infringe an intellectual property right. Article 2.10: “Each Party shall adopt or maintain a procedure by which their competent authorities may determine, within a reasonable period of time after the initiation of the procedures described under Article 2.X, whether the suspect goods infringe an intellectual property right.”

A final limitation, to counterfeit goods, is missing. So, confusingly similar goods are included. A footnote like in the EU – Korea FTA is missing.

ACTA does have a definition of counterfeit goods in Chapter 1, section B: “counterfeit trademark goods means any goods, including packaging, bearing without authorization a trademark that is identical to the trademark validly registered in respect of such goods, or that cannot be distinguished in its essential aspects from such a trademark, and that thereby infringes the rights of the owner of the trademark in question under the law of the country in which the procedures set out in Section 2, 3, 4 and 5 of Chapter2 are invoked;”.

The last part of this definition (“and that thereby infringes the rights of the owner of the trademark in question under the law of the country in which the procedures set out in Section 2, 3, 4 and 5 of Chapter2 are invoked”) only says that there has to be an infringement first, this definition does not create infringements. The last part of the definition above is also present in the EU – Korea FTA (see below).

The only part missing is that the definition of counterfeit goods is not used, not invoked, in the border measures section (except for one subarticle).

Without a clear limitation to counterfeit goods, the border measures include confusingly similar trade mark goods. Like this, it also exceeds present EU legislation, Council Regulation (EC) No. 1383/2003, Article 2.1.


The EU – Korea free trade agreement footnote in the border measures section (emphasis added):

“27 For the purposes of this Article, goods infringing an intellectual property right means:
(a) counterfeit goods, which are
goods, including packaging, bearing without authorisation a trademark identical to the trademark duly
registered in respect of the same type of goods, or which cannot be distinguished in its essential aspects
from such a trademark, and which thereby infringes the trademark holder’s rights;
any trademark symbol (logo, label, sticker, brochure, instructions for use or guarantee document), even if
presented separately, on the same conditions as the goods referred to in subparagraph (a)(i); or
packaging materials bearing the trademarks of counterfeit goods, presented separately, on the same
conditions as the goods referred to in subparagraph (a)(i);
(b) pirated copyright goods, (…)”

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ACTA criminalises ordinary companies and individuals

Brussels, 11 November 2010 — The Anti-Counterfeiting Trade Agreement (ACTA) criminalises ordinary companies and individuals, according to the Foundation for a Free Information Infrastructure (FFII). In an open letter to the European Parliament, the FFII urges the Parliament to obtain the opinion of the Court of Justice as to whether ACTA is compatible with the EU Treaties.

In its letter, the FFII points out ACTA’s criminal measures will bring three major changes compared with the 1994 World Trade Organization TRIPS agreement. First, ACTA is not limited to distribution of copyrighted works, but includes unauthorised use. Second, ACTA removes the scale element from the definition of the crime. Third, ACTA’s footnote 9 extends the criminalisation to importation, which may include taking home a laptop after a business trip.

The consequences are far-reaching. 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, are included as well.

FFII analyst Ante Wessels: “The European Parliament has to answer the question whether it wants to massively criminalise Europe’s entrepreneurs, office workers and adolescents. For generations to come, there may be no way back.”


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