[A2k] FFII requests proof ACTA's criminal measures are essential

Ante ante at ffii.org
Wed Jan 5 01:37:44 PST 2011


[ ACTA / Economy / Innovation ]
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FFII requests proof ACTA's criminal measures are essential
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Brussels, 5 January 2011 -- The Foundation for a Free Information 
Infrastructure (FFII) requests proof that the Anti-Counterfeiting Trade 
Agreement's criminal measures are essential. The EU can only harmonise 
criminal measures if approximation of criminal laws and regulations of its 
Member States proves essential to ensure the effective implementation of a 
Union policy. The same is true for harmonisation by way of trade agreement. 
The FFII also requests documents which discuss the proportionality of the 
Anti-Counterfeiting Trade Agreement's criminal measures. 

The Anti-Counterfeiting Trade Agreement (ACTA)'s criminal measures criminalise 
ordinary companies and individuals. ACTA can be used to criminalise newspapers 
revealing a document, office workers forwarding a file and private 
downloaders. A whistle blower or weblog author revealing a document in the 
public interest, may easily be prosecutable, for instance if the webpage 
contains advertisements. Remixers and others sharing a file are included if 
there is an advantage. This advantage may be "indirect", a concept the FFII 
believes to be too unclear to incorporate in criminal law: it may be fulfilled 
by others. ACTA is not limited to large scale activity, as claimed earlier by 
the Commission. There is no de minimis exception either.

FFII analyst Ante Wessels: "The criminal measures are intrusive. The Treaties 
demand proof that these measures are essential, we want to see this proof. If 
the measures are essential, the Commission should have negotiated them. If 
they are not, the EU Commission and Parliament cannot give consent to ACTA 
including criminal measures."

The Commission left the Parliament in the dark about the criminal measures, it 
repeatedly answered questions with: "The relevant provisions of ACTA were 
negotiated by the rotating EU Presidency on behalf of the EU Member States. 
Therefore, the Presidency is best placed to respond to this question."

Ante Wessels: "The Commission is the guardian of the Treaties, it has to take 
its responsibility and provide proof the measures are essential. Without 
proof, the EU cannot ratify ACTA's criminal measures."


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FFII request
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Dear Commission, 
 
1. At the end of September 2007, the Commission launched a questionnaire 
addressed to the Member States in order to conduct a study on the situation of 
the intellectual property legislation in the Member States. See Reply 
P-0541/2008 from Commission 
http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=P-2008-0541&language=EN

I would like to receive the questionnaire, the answers given by the Member 
States and study, conclusions, etc and other documents relevant to this study.

2. I would like to receive documents which discuss whether approximation of 
criminal laws and regulations of the Member States proves essential to ensure 
the effective implementation of the Union policy with regards to intellectual 
property rights. (Compare art 83.2 TFEU)

3. I would like to receive documents which discuss the proportionality of the 
Anti-Counterfeiting Trade Agreement's criminal measures. 

Yours sincerely,

Ante Wessels


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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. 

The EU power to negotiate criminal measures in trade agreements is not 
unlimited. The criminal measures in trade agreements are limited by the same 
rules that limit the power to make internal EU legislation. Art 207.6 TFEU: 
"The exercise of the competences conferred by this Article in the field of the 
common commercial policy shall not affect the delimitation of competences 
between the Union and the Member States, and shall not lead to harmonisation 
of legislative or regulatory provisions of the Member States in so far as the 
Treaties exclude such harmonisation."

The Treaty of Lisbon entered into force on 1 December 2009. The EU is 
competent to make criminal law. Criminal IP measures have to be based on art 
83.2 TFEU: "If the approximation of criminal laws and regulations of the 
Member States proves essential to ensure the effective implementation of a 
Union policy in an area which has been subject to harmonisation measures, 
directives may establish minimum rules with regard to the definition of 
criminal offences and sanctions in the area concerned. Such directives shall 
be adopted by the same ordinary or special legislative procedure as was 
followed for the adoption of the harmonisation measures in question, without 
prejudice to Article 76."


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

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

FFII ACTA blog:
http://acta.ffii.org/wordpress/

Answers to Parliamentary questions:
P-9025/10EN 
http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=P-2010-9025&language=EN
P-8952/10EN 
http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=P-2010-8952&language=EN
P-8950/10EN 
http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=P-2010-8950&language=EN

Parliamentary questions:
http://en.act-on-acta.eu/20_October_Priority_Questions

Permanent link to this press release:
http://press.ffii.org/Press%20releases/FFII%20requests%20proof%20ACTA%27s%20criminal%20measures%20are%20essential


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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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