10 European Commission myths about ACTA

By EDRi · February 8, 2012

1. This is only about large-scale infringements
a. Criminal sanctions

There is no minimum-level of infringement that could be criminalised by ACTA. It requires parties to, at least, criminalise infringements which are for direct economic advantage, direct commercial advantage, indirect economic advantage, indirect commercial advantage or “aiding and abetting” such an offence.

In the absence of a definition of any these five activities, the European Commission has no way of knowing whether only large-scale infringements will be covered.

b. Civil sanctions

ACTA’s civil measures also do not have a minimum threshold. Rightsholders can decide themselves whom they wish to target.

c. Private enforcement

ACTA, in its preamble and in Article 27, places an obligation on parties to promote enforcement of rights by private industry stakeholders. Internet industry stakeholders, as commercial companies, will be under threat of criminal sanctions for “aiding and abetting” or “indirect economic advantage,” if they do not prevent infringements on their networks.

In such circumstances, it is absolutely certain that the enforcement measures will extend far beyond large-scale infringements.

2. There are no fundamental rights concerns
As just one example of ACTA’s significant fundamental rights concerns, Article 27 imposes an obligation to encourage industry stakeholders to undertake law enforcement activities. In such circumstances, strong safeguards are needed in order to protect privacy, democratic freedoms, the rule of law and freedom of communication. Instead, ACTA says that parties are not obliged to weaken their privacy legislation. It goes on to say that this privatised enforcement should happen while respecting the “fundamental principles” (not “rights”) of privacy, “fair process” and freedom of communication. Remarkably, despite the fact that ACTA refers this “fundamental principle,” it does not actually exist in international law. Lack of obligations on due process of law is one of the biggest and most dangerous flaws in ACTA.

If the threats are real and the safeguards are imaginary, the threat for fundamental rights is clear.

3. This is not about “three strikes,” blocking or shutting down websites
ACTA places an obligation on parties to encourage law enforcement by industry stakeholders. What does this mean? In Ireland, in just one year of this form of cooperation, at least 300 false accusations were sent to innocent users in a “voluntary” “three strikes” system. In the United Kingdom, it means “voluntary” blocking of websites outside a legal framework – including the blocking of sites that have not even been accused of breaking any laws.
In the Netherlands, a study proved that 70% of Internet providers were prepared to delete websites “voluntarily” outside the rule of law. If voluntary industry cooperation already means “three strikes” and blocking and deletion of websites without any judicial intervention, how can the Commission claim that voluntary industry cooperation will not spread this anti-democratic practice?

If, already today in the EU, privatised enforcement is leading to censorship and punishment of innocent citizens, these practices should be stopped and not and exported globally

4. ACTA is fully in line with the EU legal framework
The criminal sanctions measures are completely new. Furthermore, as the European Parliament study points out, the criminal measures proposed go far beyond the limits of what the Parliament was prepared to accept when criminal measures were discussed. The European Parliament study also pointed to a range of other measures in ACTA which are not in the current legislation of the European Union. For example, the extremely disproportionate provision that damages may be equivalent to the retail value of the goods in question.

The Commission insists on saying that ACTA is in line with the European legislation, despite the fact that there is no EU legislation on privatised enforcement, no legislation on criminal sanctions, no legislation on “retail price” damages, etc., etc.

5. ACTA is good or the economy and good for jobs
In the digital environment, repressive measures have never had any positive impact. According to the music industry, the modest revenue increase after the adoption of the French HADOPI law is only a fraction of the cost of implementing the system (including direct costs of subsidies for buying music through the “carte jeune”).
In the offline environment, the European Parliament’s study on ACTA highlighted the fact that “it is not possible to say at what point IPR protection becomes counter productive.” This being the case, particularly after the European Commission’s steadfast refusal to undertake an impact assessment, the European Commission has no grounds for its wild claims about the costs and benefits of ACTA.

The European Commission repeats unsourced claims about the huge potential benefits of ACTA but is so unsure of its “facts” that it refuses to carry out an independent impact assessment.

6. The ACTA negotiating parties did not avoid the WIPO/WTO just because they could not impose there will in inclusive multilateral forums
According to the European Commission, this is exactly why the WTO and WIPO were ignored. In its “10 myths about ACTA” document, the Commission explained that “the point is that certain other Members of these organisations opposed any enforcement debate there.”

There would not be any inclusive multilateral forums in existence if developed countries set up alternative structures every time that they could not impose their will.

7. ACTA’s provisions will not require additional EU-level legislation

One of the Commission’s primary tasks is to ensure the effective functioning of the single market. Having failed to harmonise copyright legislation in the EU, the Commission is now proposing a treaty which will lead to 27 countries implementing 27 different versions of ACTA’s very unclear criminal sanctions provisions into their national law. The European Commission claims to believe that this will happen in a perfectly harmonised way requiring no EU level legislation – despite the fact that it already claimed in 2006 that harmonised criminal sanctions legislation was necessary, when there were fewer barriers caused by criminal sanctions.

The Commission apparently wants the public to believe that 27 different implementations of ACTA’s unclear criminal sanctions provisions will not result in major inconsistencies in the laws of the already disjointed “single market” for audiovisual goods.

8. ACTA does not move the balance of rights towards IP rightsholders
The European Economic and Social Committee has said that, in its independent view, “ACTA’s approach is aimed at further strengthening the position of rights holders vis-à-vis the ‘public’, certain of whose fundamental rights (privacy, freedom of information, secrecy of correspondence, presumption of innocence) are becoming increasingly undermined by laws that are heavily biased in favour of content distributors.” This can easily be backed up by looking at the text. For example, Internet provider liability protections, which are essential for privacy and freedom of communication are explicitly only permitted in ACTA if the interests of copyright holders are first taken into account. Similarly, there are no meaningful safeguards to protect the public from the privatised enforcement cooperation encouraged by ACTA.

Creating obligations without safeguards creates an imbalance of rights in favour of IP rightsholders.

9. ACTA is not a “secret agreement”
The public does not have access to the vast majority of documents related to ACTA. Much of ACTA’s text is very unclear and its meaning will not become clear until one of the negotiating parties publish preparatory documents (in the context of dispute resolution proceedings, for example). The European Parliament’s legal service has produced two opinions on ACTA and even these documents, paid for by European voters, have not been made public.
If ACTA is not a secret agreement, what were the documents that US businesses were allowed access to, under non-disclosure agreements, that were not made available to European businesses and European civil society?

If negotiations are held in secret, if preparatory documents are kept secret, if negotiating drafts are kept secret, if legal analyses are kept secret, it is very difficult to credibly argue that ACTA was a model of transparency. The only thing that is transparent is the dishonesty.

10. ACTA is an anti-counterfeiting trade agreement.
ACTA is about enforcement of various forms of intellectual property rights. It is not about trade.

Our biggest trading partner, the United States will not consider itself bound by ACTA. It is therefore not even an “agreement” for our most important partner.

Due to its secrecy, its undermining of agreed international forums and its exclusive and secretive nature, it has reduced the likelihood of agreement with the countries that the EU most needs to. It has alienated the countries that the EU would most like to agree with on enforcement mechanisms. It has therefore moved us further away from agreement with the countries that are most problematic regarding counterfeiting from an EU perspective.

ACTA is an anti-counterfeiting, anti-trade, anti-agreement.