Where did the patients go?

The European Commission decided to ask the EU Court of Justice an opinion on ACTA. Commissioner Karel De Gucht stated: “We are planning to ask Europe’s highest court to assess whether ACTA is incompatible – in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property.” I note De Gucht does not mention public health issues. Oxfam (pdf), Public Citizen (pdf), Médecins Sans Frontières (pdf), and Flynn and Madhani voiced serious concerns over access to essential medicines – a matter of life and death. Furthermore, the Commission did not assess the effects ACTA may have on diffusion of green technology, needed to fight climate change. Continue Reading →

Médecins Sans Frontières deeply concerned

As a treatment provider for LDC, Médecins Sans Frontières (MSF) is deeply concerned about the impact of ACTA as part of a larger enforcement agenda on the production and supply of affordable, legitimate medicines. They urge contracting States not to sign or ratify ACTA unless all concerns related to access to medicines are fully addressed. MSF relies primarily on generic medicines procured internationally….Many developing countries have no domestic pharmaceutical manufacturing capacity and governments and patients rely on imported generic medicines. Generic competition is the main driver of pharmaceutical price reductions … ACTA is… Continue Reading →

Global Europe – European Parliament vs. De Gucht

The Anti-Counterfeiting Trade Agreement (ACTA) is adopted under the so called “Global Europe” strategy of the European Commission. In its resolution of 22 May 2007 on Global Europe – external aspects of competitiveness the European Parliament demanded with regard to intellectual property rights:

60. Stresses that European IPR policy towards developing countries should not go beyond TRIPs Agreement obligations, but that it should instead encourage the use of TRIPs flexibilities;

That contradicts the presentation of ACTA as an “advanced standard” over TRIPS, as consistently argued by the Commission. Commissioner Karel de Gucht, for instance, told the European Parliament plenary (10 Sept 2010):

What we are aiming at is simply setting an international standard in IPR enforcement that is reasonable, balanced and effective, and thus goes beyond the current WTO rules on IPR: the TRIPS agreement. This is the ultimate objective, on which I am sure we all agree. Continue Reading →

Will ACTA compromise the European Court of Justice too?

(Updated) The Commission will ask the Court of Justice an opinion on ACTA. It would have been better if the Commission would have withdrawn ACTA. Earlier, the Court formulated an opinion on ACTA’s predecessor, the TRIPS agreement. The 1994 WTO TRIPS agreement spread out the enforcement of intellectual property rights over the world. Countries lost the ability to abolish their copyright and patent systems. For instance, the Netherlands abolished its suffocating patent system in 1869, and reintroduced patents in 1912. Continue Reading →

EuroParliament to exclude Free Software with patents and FRAND

Brussels, 17 Feb 2012 — The European Parliament Consumer Committee is on the verge to reform the standardisation process in Europe. The reform recognises patented interface specifications which discriminate Free Software implementations. Royalties over standards create an unavoidable barrier of entry in the market for small software companies and independent developers. Benjamin Henrion, president of the association complains: “The payment of royalties makes it impossible to distribute free software on the web. It creates an enormous barrier of entry for small companies and independent developers. Continue Reading →

Suggestion for a question to the Court

Yesterday, the Dutch Parliament adopted a resolution asking the minister not to sign ACTA as long as it is not conclusively established that ACTA does not conflict with fundamental rights. The resolution mentions the possibility to ask the Court of Justice an opinion on ACTA. Here is my suggestion for a question:

Whereas the Anti-Counterfeiting Trade Agreement (ACTA) has been negotiated behind closed doors,

Whereas EU law is already considerably more advanced than the current international standards,

Whereas the European Academics Opinion on ACTA and the EP INTA study point out possible incompatibility with the acquis with regards to, for instance, retail price damages, injunctions, provisional measures and border measures,

Whereas Korff and Brown apply fair balance tests to ACTA and conclude that, in their opinion, these tests show ACTA is manifestly incompatible with fundamental rights, rendering the safeguards in ACTA inadequate,

Whereas the European Academics Opinion, the EP INTA study and Korff and Brown note problems with the definition of commercial scale and note that the definition of the crime is vague and does not seem to have a de minimis clause, nor a general interest exemption,

Whereas, according to the Media Piracy in Emerging Economies study, in emerging economies, CDs and DVDs are often sold for the same prices as in the US and Europe; and 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; there is no distribution of legal CDs and DVDs outside the capitals and some 90% of the people in emerging economies can only turn to illegal media copies,

Whereas, in the opinion of Flynn and Madhani, ACTA is likely to make affordable medicines more scarce and dear in many countries; and ACTA only contains a reference to the Doha Declaration on the TRIPS Agreement and Public Health in the non binding preamble; and DG Trade uses a more limited interpretation of the Doha Declaration than the WTO; and ACTA has stronger measures than TRIPS and allegedly even stronger than the EU acquis,

Whereas article 15 UN International Covenant on Economic, Social and Cultural Rights reads: “1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (…)”

Whereas article 1 TEU paragraph 2 reads: “This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.” Whereas article 3.5 TEU reads: “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. Continue Reading →

Dutch Parliament asks government not to sign ACTA

According to the not corrected minutes, the Dutch Parliament adopted this motion:

The Chamber,

heard the discussion,

whereas the Anti-Counterfeiting Trade Agreement (ACTA) is or will be submitted for adoption to the European Parliament and national parliaments of the Member States of the European Union;

whereas five Member States of the European Union, including the Netherlands, did not sign the treaty;

whereas according to Article 218, paragraph 11 of the Treaty on the Functioning of the European Union, each Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties;

whereas several scientific studies conclude that ACTA is possibly at odds with the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights;

whereas the possible effects of this Treaty for the in the Dutch Constitution recognized freedoms such as the freedom of expression and information and the right to privacy have not been explored,

asks the Government not to sign the ACTA treaty as long as it is not conclusively established that the treaty does not conflict with fundamental rights,

and proceeds to the order of the day. SP, PvdD, PvdA, GroenLinks, D66, ChristenUnie and PVV voted for the resolution, it was adopted. Dutch text:

De Kamer,

gehoord de beraadslaging,

overwegende dat het Anti-Counterfeiting Trade Agreement (ACTA) voor goedkeuring is of zal worden voorgelegd aan het Europees Parlement en aan de nationale parlementen van de lidstaten van de Europese Unie;

overwegende dat vijf lidstaten van de Europese Unie, waaronder Nederland, het verdrag niet hebben getekend;

overwegende dat volgens artikel 218, lid 11 van het Verdrag betreffende de Werking van de Europese Unie iedere lidstaat het advies van het Europees Hof van Justitie kan inwinnen over de verenigbaarheid van een voorgenomen overeenkomst met de Europese verdragen;

overwegende dat verschillende wetenschappelijke studies constateren dat ACTA mogelijk op gespannen voet staat met het Grondrechtenhandvest van de Europese Unie en het Europees Verdrag voor de Rechten van de Mens;

overwegende dat de mogelijke rechtsgevolgen van dit Verdrag voor de in de Nederlandse Grondwet erkende vrijheden zoals de uitings- en informatievrijheid en het recht op privacy niet zijn verkend,

verzoekt de regering om het ACTA verdrag niet te tekenen zolang niet onomstotelijk vastgesteld is dat het verdrag niet in strijd is met de grondrechten,

en gaat over tot de orde van de dag. Continue Reading →

Greens/EFA envoked RoP36 on ACTA

The Green/EFA Group in the European Parliament officially envoked 36 of the Rules of Procedure concerning ACTA. In a letter to the Parliament President Jerzy Buzek from October 2011 group leaders Rebecca Harms and Daniel Cohn-Bendit officially envoked RoP 36(2). With Human rights groups like Amnesty International rallying against the ACTA treaty that call makes a lot of sense. Rule 36 : Respect for the Charter of Fundamental Rights of the European Union

1. Parliament shall in all its activities fully respect fundamental rights as laid down in the Charter of Fundamental Rights of the European Union. Continue Reading →

Studies and Opinions on ACTA

Today there will be over 200 demonstrations against ACTA in Europe. I made a one page handout that lists studies and opinions on ACTA: http://people.ffii.org/~ante/acta/Studies-on-ACTA.pdf

Below a version with more quotes:

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

Douwe Korff & Ian Brown: “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. Continue Reading →

Article 41 – The Ultimate Answer

Your nation has already signed the agreement and ratification is pending. You don’t get anything from unprofessional apologies from diplomates who signed ACTA. Simply request your  government to file an Article 41 note. The Ultimate Answer to the Ultimate Question of Democracy, The Internet, and Everything is 41. ARTICLE 41: WITHDRAWAL
A Party may withdraw from this Agreement by means of a written notification to the Depositary. Continue Reading →

European Standardisation Reform lowers the bar

Brussels, 10 February 2012 — The Consumer Committee (IMCO) within the European Parliament is considering an overhaul of the current standardisation system in Europe. The FFII presents a paper on the proposed recognition of ICT specifications from consortia. “They propose minimum rules against trade and antitrust abuses. It’s hard to imagine up an awkward specification which would fail the test”, explains FFII standards analyst André Rebentisch. The Commission proposal does not limit official recognition to ‘open specifications’ (royalty-free patent terms) but also makes consortial specifications under so called “fair, reasonable and non-discriminatory terms” (FRAND) qualify. Continue Reading →

MEP Phil Prendergast has a few questions on ACTA

Members of the European Parliament could submit as many written parliament questions to the Council and the Commission as they like and force these institutions to make official statements. If you have a technical question about specific ACTA provisions or procedural oddities feel free to suggest your Member of Parliament to table them. Most MEPs are not as industrious in tabling parliament questions as Phil Prendergast (S&D, Labour Party Ireland)  recently, and they limit their tabling to the “priority questions”/”oral questions”, where they have limitations but the institutions have to answer in a faster pace. In the past most of the numerous questions on ACTA were posed to the Commission, not the Council. However, only the Council is competent to answer the procedural specifics of the strange criminal sanctions parts. Continue Reading →