[A2k] Copyright Criminal measures in ACTA

Ante ante at ffii.org
Mon Oct 18 06:30:07 PDT 2010


Copyright Criminal measures in ACTA

ACTA 2.14.1: "Each Party shall provide for criminal procedures and
penalties to be applied at least in cases of willful trademark
counterfeiting or copyright or related rights piracy on a commercial
scale. [ACTA footnote 9]

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."

On July 12, Commissioner De Gucht said ACTA will not have a definition of
commercial scale. The second sentence is a definition of commercial scale,
De Gucht misinformed the European Parliament.

The definition is extremely broad, "commercial activities for direct or
indirect economic or commercial advantage". This is hardly a threshold at
all. For example an advertisement on a web page gives a commercial
advantage. When someone downloads a song from the Internet without
authorization, that person could be seen as having gained a commercial
advantage by not paying for it.

This definition includes newspapers revealing a document, office workers
forwarding a document and possibly downloaders. Remixers and others
sharing a file are included if there is an advantage. A whistle blower or
weblog author revealing a document in the public interest, may easily be
prosecutable, for instance if the webpage contains advertisements. ACTA
does not contain exceptions. ACTA is not limited to large scale activity,
as claimed earlier by the Commission. There is no de minimis exception

What could be indirect economic or commercial advantage? Say you have a
nice cd, make a copy for a friend. He then buys a cd and gives it to you.
The act of someone else fulfills the indirect advantage element. Indirect
advantages should never be an element of the crime.

ACTA footnote 9: "Each Party shall treat willful importation or
exportation of counterfeit trademark goods or pirated copyright goods on a
commercial scale as unlawful activities subject to criminal penalties
under this Article. A Party may comply with its obligation relating to
exportation and importation of pirated copyright or counterfeit trademark
goods by providing for distribution, sale or offer for sale of counterfeit
trademark goods or pirated copyright goods on a commercial scale as
unlawful activities subject to criminal penalties."

In this footnote the criminalisation is extended, something which should
not happen in a footnote. Importation may refer to downloading or taking
home a dvd after holiday. There is no de minimis exception. The
alternative measures include distribution, problematic for newspapers,
whistle blowers, office workers, remixers, weblog authors and filesharers.
Why do ACTA's border measures contain a de minimis exception, but do
criminal measures regarding importation not contain a de minimis

Art 2.14.4 "With respect to the offences specified in this Section, each
Party shall ensure that criminal liability for aiding and abetting is
available under its law."

The criminalisation is so broad, that aiding and abetting may easily occur
as well.

The criminal measures are highly invasive, Parties limit their domestic
policy space beyond proportion, foreclosing future legislative
improvements in response to changes in technology or policy.


 - the Presidency of the Council may not be competent to initial criminal
measures in trade agreements,

 - ACTA's criminal measures fail to meet the EU principle of proportionality,

 - they go beyond the European Parliament 2007 vote on the IPRED 2 proposal,

 - an opinion of the Court of Justice as to whether ACTA is compatible
with the Treaties should be obtained.


vriendelijke groet,


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