European Commission stumbles in ACTA opinion rebuttal
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Deutsch: EU-Komission strauchelt bei Entgegnung auf ACTA-Stellungnahme
Last week, the European Commission posted a rebuttal to a widely cited opinion document by prominent European academics on the Anti- Counterfeiting Trade Agreement (ACTA). The Commission however made several factual errors in its rebuttal, according to an analysis by Ante Wessels of the Foundation for a Free Information Infrastructures (FFII). In some cases, the Commission even appears to have forgotten its own prior statements on ACTA.
In their opinion document, the European academics noted several incompatibilities between ACTA and the EU acquis, in addition to serious concerns on fundamental rights, data protection and a lack of balance of interests. They called upon the European Parliament and on national legislators and governments to withhold consent of ACTA until these concerns were addressed.
The Commission has now published a point-by-point rebuttal of this opinion document. In general, it claims that most concerns of the academics do not apply because a number of ACTA provisions are optional, or because EU legislation already contains similar measures.
Ante Wessels of the FFII disagrees with the Commission. Stating that it "is too much work to address all the flaws in the Commission's notes", he limits his remarks to three topics.
1. His first comments are related to the awarded damages. The EU directive 2004/48, also known as IPRED, both in general and in detail, specifies that awarded damages can only be based on unfair profits by the infringer and on actual losses incurred by the rightholder. ACTA concurs in general, but goes further by stating that judicial authorities must also be able to consider additional elements such as the suggested retail price.
In other words, under IPRED, a judge would be hard-pressed to award Microsoft 130 Euro in damages for patent infringement per copy of Linux downloaded. After all, not every such download replaced the sale of a Windows copy. On the other hand, ACTA does mandate the possibility of such a decision. It thereby forces the reasoning by the music sector that every infringement corresponds to a lost sale to be codified in law for all industries.
The Commission however sees no conflict between ACTA and IPRED, because it considers both ways to arrive at awarded damages as "fair". Let this reasoning henceforth be known as "the European fairness doctrine of legal equivalence". Furthermore, the Commission claims that considering the retail price and the value of infringed goods or services is optional in ACTA. As Mr Wessels notes, it seems to have missed that ACTA does require providing for these possibilities in law. They are only optional in the sense that nobody will hold a gun to the rightholders' heads forcing them to ask the judicial authorities to take these additional elements into account.
2. The second discussion point centres around border measures. The academics noted that ACTA requires border measures for a broad category of trademark infringements, while present EU legislation only does so in case of "counterfeit goods". The Commission denies this point by stating that it actually insisted on the much broader ACTA definition, in order to give the EU more flexibility when reviewing the applicable EU legislation. Mr Wessels does not understand this reasoning, given that ACTA lays down minimum requirements rather than maxima. As a result, the EU will have to broaden the scope of its relevant legislation to comply with ACTA, and the Commission takes explicit credit for this achievement in its attempted rebuttal of that exact same statement.
The Commission also argues that illegitimate claims of trademark infringements do not pose problems for the generic medicines industry, even though the Dutch Minister of Economic Affairs has stated the opposite in the past. Finally, the Commission also tries to calm fears over patent-based border seizures, by noting that civil remedies to patent-related issues are optional in ACTA. Mr Wessels remarks that it is possible to opt out of civil remedies to patent-related issues, but that the Commission has already publicly confirmed that, unlike the US, they will not take advantage of this option.
3. The final observations are about the criminal measures in ACTA. The Commission says that it can consent without any problems to the ACTA criminal measures, because they will not require changes to EU legislation. It compares the ACTA situation to the TRIPS agreement, but Mr Wessels notes that the Community never signed on to the TRIPS criminal measures exactly because it was not competent to do so. Instead, only the individual member states ratified the TRIPS criminal measures. In case of ACTA, the Community is not competent either as far as criminal measures are concerned, but the Commission nevertheless did agree to them rather than leaving it solely to the member states.
In summary, even though the Commission has had over three months to analyse the opinion by the academics and formulate a reply, it appears that the said reply was hastily written and poorly vetted before it was published. The Commission's comments ignore prior statements made by the Commission itself, focus on misreadings of the ACTA text and suggest a lack of awareness concerning EU competency. The European Parliament however still has to decide on whether or not to give its assent to the proposed agreement before it can be ratified.
The EU Commission lacks basic reading skills (1.05.2011)
Comments on the "Opinion of European Academics on Anti-Counterfeiting Trade
Opinion of European Academics on ACTA (20.01.2011)
(contribution by Jonas Maebe - volunteer with the EDRi-member Liga voor Mensenrechten, Belgium)