[A2k] ACTA criminalises ordinary companies and individuals

Ante ante at ffii.org
Thu Nov 11 01:26:28 PST 2010


[ ACTA / Economy / Innovation ]
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ACTA criminalises ordinary companies and individuals
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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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FFII's letter to the European Parliament
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JURI Committee
LIBE Committee
European Parliament

11 November 2010

Re: ACTA criminalises ordinary companies and individuals


Dear Members of the JURI Committee,
Dear Members of the LIBE Committee,

We are writing to express our concerns with the Anti-Counterfeiting Trade 
Agreement's criminal measures. They criminalise ordinary companies and 
individuals. 

First, unlike the TRIPS agreement, the Anti-Counterfeiting Trade Agreement 
(ACTA) is not limited to unauthorised distribution. ACTA also includes 
unauthorised use of copyrighted works. At the WTO Council for TRIPS (October 
2010), the US Trade Representative made clear ACTA also includes companies 
using unauthorised software. [1] 

Second, ACTA removes the scale element from the definition of the crime. While 
in public the Commission mentions large scale criminal activities, in a secret 
document the Commission actually makes clear that the ACTA definition 
overturns the decision of the WTO dispute settlement panel in the recent 
China-Enforcement case. [2]

Third, ACTA's footnote 9 extends the criminalisation to importation (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. This advantage may be indirect, a concept we believe to be too 
unclear to incorporate in criminal law.

It is a basic misconception to use a civil law definition for criminal law. 
ACTA's definition of commercial scale is as broad as possible: "For the 
purposes of this section, acts carried out on a commercial scale include at 
least those carried out as commercial activities for direct or indirect 
economic or commercial advantage." 

This definition is not limited to large scale activities, does not contain a 
de minimis exception, does not contain other exceptions, is not limited to 
software and also covers companies and individuals. While ACTA's border 
measures contain a de minimis exception, the criminal measures do not, opening 
up the possibility of laptop and iPod searches just after border control. The 
criminalisation is so broad, that the threshold for being guilty of aiding and 
abetting may easily be passed.

The European Parliament has to answer the question whether it wants to 
massively criminalise Europe's entrepreneurs, office workers and adolescents.

ACTA countries account for a predominant percentage of world trade, there is a 
clear threat that these norms will carry into the World Trade Organization and 
become global norms. For generations to come, there may be no way back.

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://www.keionline.org/node/1008
[2] http://keionline.org/sites/default/files/Innovative-elements-of-ACTA-
final_0.doc


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Background information
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Behind closed doors, the European Union, United States, Japan and other trade 
partners are negotiating the Anti-Counterfeiting Trade Agreement. ACTA will 
contain new international norms for the enforcement of copyrights, trade mark 
rights, patents and other exclusive rights. 


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Links
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FFII letter (pdf):
http://people.ffii.org/~ante/acta/FFII-ACTA-2010-11-11.pdf

FFII analysis criminal measures:
http://acta.ffii.org/wordpress/?p=34

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

Permanent link to this press release:
http://press.ffii.org/Press%20releases/ACTA%20criminalises%20ordinary%20companies%20and%20individuals


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Contact
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Ante Wessels 
 ante (at) ffii.org
 +31 6 100 99 063 

FFII Office Berlin 
 Malmöer  Str. 6 
 D-10439 Berlin 
 Fon:  +49-30-41722597 
 Fax Service: +49-721-509663769  
 Email:  office (at) ffii.org  
 http://www.ffii.org/ 
 

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About FFII
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The FFII is a not-for-profit association active in twenty European countries, 
dedicated to the development of information goods for the public benefit, 
based on copyright, free competition, open standards. More than 1000 members, 
3,500 companies and 100,000 supporters have entrusted the FFII to act as their 
voice in public policy questions concerning exclusion rights (intellectual 
property) in data processing.




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