[A2k] FFII calls upon European Parliament to resolve uncertainties regarding ACTA

Ante ante at ffii.org
Tue May 24 00:42:40 PDT 2011


http://acta.ffii.org/?p=627

FFII calls upon European Parliament to resolve uncertainties regarding ACTA
May 24, 2011
By Ante

Dear Members of the European Parliament,

We are writing to express our concerns with ACTA (Anti-Counterfeiting Trade 
Agreement). Whether the Parliament will ratify or reject ACTA, it will be a 
landmark decision. Yet, ACTA is still surrounded by uncertainties. We call 
upon you to decisively resolve these uncertainties. We urge the Parliament to 
seek an opinion of the European Court of Justice on the compatibility of ACTA 
with the EU Treaties, and to commission independent assessments of the effects 
ACTA will have on access to medicine, diffusion of green technologies needed to 
fight climate change, fundamental rights within and outside the Union, 
innovation, small and medium sized companies and a fair balance of interests.

Prior to ratifying the 1994 WTO TRIPS agreement (Agreement on Trade-Related 
Aspects of Intellectual Property Rights), the Commission asked the European 
Court of Justice whether TRIPS complied with the Treaties. The Court decided 
that the Community was not competent to ratify the criminal measures.

A few years later, the AIDS epidemic took millions of lives in Africa. 
Protected by TRIPS, pharmaceutical companies sold AIDS medicine in Africa for 
prices higher than in the US. They only served a very small part of the 
market. The death toll was very high. This was an unforeseen effect of TRIPS. A 
what-if question comes to mind: if it would have been possible to foresee this 
effect, would the Community have ratified TRIPS?

We now know the devastating effects that IP (“intellectual property”) 
enforcement may have on societies. With trial and error, the world learns to 
deal with TRIPS (for instance, the Doha Declaration on the TRIPS Agreement and 
Public Health, and the WIPO Development Agenda). At this point, ACTA is 
proposed.

How to proceed? The “Hargreaves Review” — the UK government-commissioned study 
on the relationship between intellectual property and growth, indicates the 
direction. The Review urges the UK Government to ensure that in future, policy 
on Intellectual Property issues is constructed on the basis of evidence, 
rather than weight of lobbying. “On copyright issues, lobbying on behalf of 
rights owners has been more persuasive to Ministers than economic impact 
assessments.” [1] We urge the EU to base its IP policy on evidence as well.

Regarding piracy, the Hargreaves Review refers to the MPEE (Media Piracy in 
Emerging Economies) report. Relative to local incomes in Brazil, Russia, or 
South Africa, the MPEE report shows, the price of a CD, DVD, or copy of 
Microsoft Office is five to ten times higher than in the United States or Europe. 
Licit media goods are luxury items in most parts of the world, and licit media 
markets are correspondingly tiny. [2]

We see the same pattern as in the 1990s in Africa, multinationals only serving 
a small part of the market. Some 90% of the people in emerging markets can 
only turn to illegal media copies. Under such circumstances, stronger 
enforcement can not solve the piracy problem. Yet, ACTA criminalises these 
people. Multinational media companies have asked the Parliament not to seek 
the opinion of the European Court of Justice on the compatibility of ACTA with 
the EU Treaties. For a marginal gain, the multinational media companies are 
willing to compromise the EU’s fundamental principles and to exclude and 
criminalise some 90% of the people in emerging markets. The consequences of 
this aggressive approach are far-reaching, both within and outside the EU.

Lobbying on behalf of rights owners has been persuasive to the Commission as 
well. The Commission refused to commission independent assessments of the 
effects ACTA will have on access to medicine and the diffusion of green 
technologies needed to fight climate change. Could ACTA be just as detrimental 
as TRIPS, or even worse? The Commission does not want to know.

Regarding patents, the Hargreaves Review observes that given the pace of 
change in the digital world and the strongly sequential nature of innovation 
in computer programs, the problems arising from patent thickets in this 
environment are particularly severe and it is essential that changes do not 
worsen the situation. We fully agree, FFII members often report that patent 
minefields are an increasingly severe problem, especially in the software 
sector. Our analysis shows ACTA’s heightened measures against patent 
infringements will make things worse. [3]

In January 2011, prominent European academics issued an “Opinion of European 
Academics on ACTA”. The academics invite the European institutions, in 
particular the European Parliament, and the national legislators and 
governments to withhold consent of ACTA, “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”.

In April 2011, the European Commission’s services put on-line comments to the 
European Academics’ Opinion on ACTA. The Commission denies that ACTA is 
incompatible with EU law. It appears the Commission does not have any 
reasonable objections against the academics’ Opinion. Even a partial scrutiny 
of the Commission’s comments shows the Commission misrepresents ACTA, does not 
address points raised by the academics and even uses nonsensical reasoning. 
Regarding the border measures, an issue with consequences on access to 
medicine, the Commission actually agrees with the academics, while denying 
that. We invite you to take note of our analysis. [4]

The Commission refused to commission independent assessments and gave a very 
weak response to the European Academics’ Opinion on ACTA. It never provided 
proof ACTA’s criminal measures are essential. We believe the European 
Parliament now has to take responsibility.

We urge the Parliament to seek an opinion of the European Court of Justice on 
the compatibility of ACTA with the EU Treaties. Parliament does not have to 
wait with this, according to ECJ Opinion 1/09. This is an essential step, as 
it will clarify whether ACTA complies with the EU’s fundamental principles.

We also urge Parliament to commission independent assessments of the effects 
ACTA will have on access to medicine, diffusion of green technologies needed to 
fight climate change, fundamental rights within and outside the Union, 
innovation, small and medium sized companies and a fair balance of interests.

Yours sincerely,

Ante Wessels
Foundation for a Free Information Infrastructure

[1] http://www.ipo.gov.uk/ipreview-finalreport.pdf

[2] http://piracy.ssrc.org/about-the-report/

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

[4] http://acta.ffii.org/?p=598




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