[A2k] EU Commission propaganda on ACTA

Ante ante at ffii.org
Thu Jan 26 07:36:43 PST 2012


EU Commission propaganda on ACTA
http://acta.ffii.org/?p=1082

January 26, 2012
By Ante

The European Commission published a document in defense of ACTA, “10 Myths 
about ACTA“. It is pure propaganda. The document is widely distributed by 
polish authorities.

Let’s take a look.

Myth 1: ACTA is a secret agreement. Negotiations were not transparent and 
conducted “behind closed doors”. The European Parliament was not fully 
informed.

Commission: “The text of ACTA is publicly available to all.”

The final text is indeed available.

Commission: “The negotiations for ACTA were not different from negotiations on 
any other international agreement.”

That is not true. WTO and WIPO have much more transparency and input from 
NGOs.

Commission: “It is a fact that such agreements are not negotiated in public, 
but with the Lison Agreement and the revised Framework Agreement there are 
clear rules on how the EP should be informed of such trade negotiations. And 
these have been scrupulously followed.”

Still, the Parliament could not discuss the text openly. No feedback from 
experts possible. And earlier versions are still secret, while they may be 
important for interpertation in conflict resolution.

Commission: “Commissioner De Gucht has participated in three plenary debates, 
replied to several dozens of written and oral questions, as well to two 
Resolutions and one Declaration of the EP, whilst Commission services have 
provided several dedicated briefings to MEPs during the negotiations.”

Remember De Gucht said that there will not be a definition of commercial scale 
in ACTA?

http://keionline.org/node/886

Commission: “Likewise, the public was informed, since the launch of the 
negotiations about the objectives and general thrust of the negotiations. The 
Commission also released summary reports after every negotiation round and the 
negotiating text since April 2010.”

Like this document, the summary reports did not contain correct information.

Myth 2: ACTA leads to “harmonisation through the backdoor”. A study ordered by 
INTA to academics says that ACTA will require changes to EU enforcement 
legislation and/or to national laws.

Commission: “ACTA provisions are compatible with existing EU law.”

Prominent European Academics do not agree:

http://www.iri.uni-hannover.de/acta-1668.html

Commission: “ACTA will not require any revision or adaptation of EU law and 
will not require any Member States to review the measures or instruments by 
which they implement relevant EU law. ACTA is also in line with relevant 
international law, in particular the TRIPs Agreement.”

ACTA goes beyond the TRIPS agreement. The ACTA text only mentions the Doha 
Declaration once in the non binding ACTA preamble. The combination of 
heightened measures with a non binding reference to the Doha Declaration, and 
DG-Trade and the US Trade Representative undermining the Doha Declaration in 
other fora does not provide sufficient safeguards for access to medicine.

ACTA is not compatible with article 15 of the UN International Covenant on 
Economic, Social and Cultural Rights (ICESCR).

Nor is ACTA is compatible with articles 17 and 19 of the UN International 
Covenant on Civil and Political Rights (ICCPR).

http://acta.ffii.org/?p=992

http://www.article19.org/resources.php/resource/2901/en/european-parliament:-
reject-anti-counterfeiting-trade-agreement-%28acta%29

Commission: “This has been confirmed in very clear terms by two Opinions of the 
Legal Service of the European Parliament which were requested by the INTA and 
the JURI Committees.”

The FFII compared the legal service’s opinions with academic opinions, and 
found that the legal service consistently overlooks known issues.

http://acta.ffii.org/?p=1057

Commission: “The INTA study does not show evidence of any concrete situation 
where ACTA would contradict, repeal or require the modification of a single 
provision existing in EU legislation. Instead, it gives two examples ”

The INTA study also mentions problems with injunctions, page 25.

http://www.erikjosefsson.eu/sites/default/files/DG_EXPO_Policy_Department_Study_ACTA_assessment.pdf

Commission: “(regarding the coverage of all trademark infringements by customs 
controls and regarding the calculation of damages based on the value of the 
real goods) where it cautions against the possibility that the EU be found in 
breach of ACTA due to the interpretation that some of its members may have of 
the implementation of ACTA’s rules.”

No, the INTA study said: “In light of the analysis conducted, it can be argued 
that the provisions of ACTA appear to be, in most cases, in line with the EU 
acquis communautaire. However, in some cases, ACTA is arguably more ambitious 
than EU law, providing a degree of protection that appears to go beyond the 
limits established in EU law. Therefore: for those European Parliamentarians 
for whom conformity with the EU Acquis is sine qua non for granting consent, 
this study cannot recommend that they provide such consent to ACTA as it now 
stands.”

Regarding damages, the INTA study recommends asking the European Court of 
Justice an opinion.

The ARTICLE 19 organisation calls ACTA’s damages “astronomical”.

http://www.article19.org/resources.php/resource/2901/en/european-parliament:-
reject-anti-counterfeiting-trade-agreement-%28acta%29

The FFII gives simple examples which show ACTA’s damages are higher than EU 
law damages. For instance: A 2 terabyte hard disk can contain 540.000 songs. 
Someone copies a hard disk full of songs. Based on retail price, say 1 euro 
per song, the rights holder can claim 540.000 euro under ACTA art 9. For 
details, see:

http://acta.ffii.org/?p=992

Myth 3: ACTA moves the balance of rights towards IP right-holders. ACTA 
eliminates safeguards and exceptions existing under international law.

Commission: “Quite to the contrary, ACTA is drafted in very flexible terms and 
contains the necessary safeguards to allow its Parties to strike an 
appropriate balance between all rights and interests involved, in line with 
their economic, political and social objectives, as well as with their legal 
traditions. All safeguards and exceptions under EU law or under the TRIPs 
Agreement remain fully preserved.”

ACTA contains extreme measures, which can not be repaired by a general 
reference to proportionality. See also below.

Myth 4:ACTA will lead to limitations on fundamental rights or civil liberties 
(e.g. controls of laptops of air passengers at borders, monitoring of internet 
traffic, etc.).

Commission: “There is no provision in ACTA that substantiates this claim. ACTA 
is about tackling large scale illegal activity, often pursued by criminal 
organisations. ”

Simply not true. The civil and criminal measures do not have a minimum 
threshold.

Regarding criminal measures, the WTO dispute settlement panel definition of 
commercial scale (US versus China case) leaves countries policy space to find a 
proportional solution. ACTA deliberately overturns this definition. ACTA 
removes the scale element from the definition of the crime. ACTA does not have 
a public interest exemption either. As a result, ACTA criminalises everyday 
computer use. ACTA can be used to criminalise newspapers and websites 
revealing a document, office workers forwarding a file, people making a private 
copy and whistle-blowers revealing documents in the public interest. ACTA 
criminalises almost everyone with a computer – who never forwarded an email? 
ACTA also criminalises aiding and abetting, which puts pressure on Internet 
Service Providers, who may decide to pre-emptively censor Internet 
communications.

http://www.article19.org/resources.php/resource/2901/en/european-parliament:-
reject-anti-counterfeiting-trade-agreement-%28acta%29

http://acta.ffii.org/?p=992

Commission: “It is not about limiting civil liberties or harassing consumers. 
The respect for fundamental rights such as, privacy, freedom of expression and 
data protection is expressly mentioned as a basic principle of the agreement.”

To establish whether ACTA violates fundamental rights, fair balance tests are 
needed. The European Parliament’s legal service does not provide any fair 
balance test. The 61 pages Douwe Korff & Ian Brown opinion provides many such 
tests. These tests show ACTA is manifestly incompatible with fundamental 
rights. Just providing a general reference to fundamental rights is not 
enough.

The ARTICLE 19 organisation “finds that ACTA fundamentally flawed from a freedom 
of expression and information perspective. If enacted, it will greatly 
endanger the free-flow of information and the free exchange of ideas, 
particularly on the internet.”

Korff & Brown conclude: “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, equally 
disproportionally interferes with a range of other fundamental rights, and 
provides for (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. This makes the entire 
Agreement, in our opinion, incompatible with fundamental European human rights 
instruments and -standards.”

http://rfc.act-on-acta.eu/fundamental-rights

Commission: “There is a provision in ACTA specifically exempting travellers 
from checks if the infringing goods are of a non-commercial nature and not 
part of large scale trafficking ”

In the border measures section, ACTA contains this exception: “small 
quantities of goods of a non-commercial nature contained in travellers’ 
personal luggage”. But it also contains this inclusion: “Each Party shall 
include in the application of this Section goods of a commercial nature sent 
in small consignments.”

So they can still search your mail and destroy it. And they can block your 
international emails and Internet connections containing digital goods of a 
commercial nature sent in small consignments?

Myth 5: ACTA threatens the legitimate trade in generic medicines and global 
public health.

Commission: “There are no provisions in ACTA that could directly or indirectly 
affect the legitimate trade in generic medicines or, more broadly, global 
public health.”

Not true, see:
Sean Flynn with Bijan Madhani, ACTA and Access to Medicines

http://rfc.act-on-acta.eu/access-to-medicines

Oxfam Statement regarding ACTA and Public Health

http://www.oxfamsol.be/fr/IMG/pdf/Oxfam_ACTA_analysis_FINAL.pdf

Public Citizen

http://www.citizen.org/documents/Letter-to-Members-of-the-Committee-on-Legal-
Affairs-on-the-ACTA.pdf

Commission: “On the contrary, ACTA contains unequivocal language safeguarding 
access to health and expressly refers to the Doha Declaration on intellectual 
property and public health.”

The ACTA text only mentions the Doha Declaration once in the non binding ACTA 
preamble.

The combination of heightened measures with a non binding reference to the 
Doha Declaration, and DG-Trade and the US Trade Representative undermining the 
Doha Declaration in other fora does not provide sufficient safeguards for access 
to medicine.

http://acta.ffii.org/?p=1060

Commission: “ACTA also excludes patents from criminal and border measures.”

True. And Parties may exclude them from the civil measures, but including them 
is the default in the civil section. And the Commission wants to include them. 
Imagine the astronomical damages and the intrusive injunctions and provisional 
measures as tools for patent trolls.

Myth 6: ACTA will lead to the introduction of a ’3 strikes’ system for 
internet infringements, or to demands for internet service providers (ISPs), 
to monitor or filter the data they transmit.

Commission: “ACTA does not provide for a “3 strikes” or a “graduated response” 
system to infringements over the internet. Neither does it oblige ISPs to 
monitor or filter content of their users.”

ACTA’s criminal and heightened civil measures will apply to the digital 
environment as well. This will put pressure on Internet Service Providers, who 
may decide to pre-emptively censor Internet communications.

And ACTA contains the obligation to endeavour to promote cooperative efforts 
within the business community. While the text does mention fundamental rights, 
the business community can not guarantee fundamental rights. ACTA incites 
privatised enforcement outside the rule of law.

This is not compatible with article 21 TEU, the Union’s action on the 
international scene shall be guided by the principles of democracy and the 
rule of law, the universality and indivisibility of human rights and 
fundamental freedoms (…).

Commission: “ACTA is fully in line with the relevant EU legislation, in force 
since 2000 (E-commerce Directive).”

But not in line with enforcement legislation, as we saw above.

Myth 7: ACTA’s provisions on criminal enforcement of intellectual property 
rights require additional legislation at EU level.

Commission: “There is no EU legislation on criminal measures. The criminal 
enforcement provisions of ACTA do not require additional legislation at EU 
level. A very limited number of Member States may need to adapt their own 
legislation related to criminal enforcement to comply with the commitments 
they undertook (ACTA is a mixed EU/Member States’ competence Agreement).

This has been confirmed in very clear terms by the Opinion of the Legal Service 
of the European Parliament of 5 October 2011.”

There we have the Parliament’s poodle again, which consistently overlooked all 
known issues. The problem with the legal service is that it is the 
Parliament’s lawyer. Politicians want to hear: there are no legal problems, 
you can take a decision on political grounds. So the legal service is trained 
in making legal problems disappear. Everybody happy? No, because by making 
legal problems disappear, the legal service also influences the political 
process. The legal service betrays the public, the truth, fundamental rights, 
patients world wide. And they made the Internet angry. They have compromised 
the Parliament’s good name for ever. Let’s rename the legal service to: Judas.

While it is true that the EU will not ratify the criminal measures, the EU 
member states will. So it is not helpful that the legal service fails to see 
ACTA removes the scale element from the definition of the crime. The legal 
service fails to notice ACTA criminalises everyday computer use.

Myth 8: The EU will impose the provisions of ACTA to third countries through 
incorporation of its provisions in free trade agreements.

Commission: “There is no intention to do so, and this has not been proposed in 
bilateral trade negotiations conducted by the EU”

Michael Geist: Beyond ACTA: Proposed EU – Canada Trade Agreement Intellectual 
Property Chapter Leaks

http://www.michaelgeist.ca/content/view/4627/125/

Myth 9: ACTA should only cover counterfeiting (trademark infringements) of 
goods. It should not cover copyright infringements, particularly on internet.

Commission: “Providing for enforcement of a broad range of IPR infringements 
is necessary, since a large spectrum of EU economic operators rely on economic 
activities that need intellectual property protection (e.g. geographical 
indications for high quality agricultural products, designs for fashion and 
design, copyright for the entertainment and culture sectors or patents for 
innovative industries).

This being said, ACTA steered away from a one-size-fits all approach and 
contains several exceptions to avoid that legitimate goals such as access to 
medicines are incidentally affected by provisions destined to prevent illegal 
traffics.”

ACTA will negatively impact innovation, competition, development, fair trade, 
start up companies, mass digitization projects, access to medicines and 
Internet governance. ACTA threatens the rule of law and fundamental rights.

Myth 10: ACTA was negotiated as a self-standing agreement to avoid being 
negotiated at a inclusive multilateral forum, such as the World Trade 
Organisation (WTO) or the World Intellectual Property Organisation (WIPO).

Commission: “The Commission would have preferred to address IPR enforcement 
problems in the WTO or in WIPO, and made many proposals to that effect. The 
point is that certain other Members of these organisations opposed any 
enforcement debate there.”

The world faces major challenges: access to medicine, diffusion of green 
technology needed to fight climate change, and a balanced Internet governance. 
While flexibility is essential to solve these major issues, the Anti-
Counterfeiting Trade Agreement (ACTA) codifies draconian measures. ACTA’s 
predecessor, the 1994 WTO TRIPS agreement, still hampers fair trade, even in 
life saving generic medicines. The EU should have chosen to further balance, 
in the World Trade Organization, the TRIPS agreement.

It is not too late. ACTA goes beyond US law, the US will not ratify ACTA. The 
Mexican Senate urged the government not to sign ACTA. India, Brazil and China 
have turned against ACTA. The EU can and should reject ACTA, and seek a 
balanced solution in WTO and WIPO.

10 Myths about ACTA: 
http://trade.ec.europa.eu/doclib/docs/2012/january/tradoc_148964.pdf




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