Hearing at LIBE on ACTA

By EDRi · May 23, 2012

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Deutsch: [Anhörung zu ACTA im LIBE Ausschuss | https://www.unwatched.org/EDRigram_10.10_Anhoerung_zu_ACTA_im_LIBE_Ausschuss?pk_campaign=edri&pk_kwd=20120523]

On 16 May 2012, LIBE Rapporteur on ACTA, Mr. D. Droustas, hosted the
event “the Anti-Counterfeiting Trade Agreement (ACTA) – Compatibility of
ACTA with Fundamental Rights”. He welcomed the audience stating that
European Parliament (EP)’s task policy is to overcome a challenge,
namely to find a balance between new technology, artists’ creations and
fundamental rights. He said that Europe has to show the right direction
to the international community, in particular allowing citizens to
participate proactively in the debate. “If you see the mood around,
someone could say that ACTA is politically dead”, he said, “so we need
something different and now we need to think about it”.

The first Panel was on the general assessment from the European
Commission, practice and civil society.

A. Jessen, European Commissioner, said that this Agreement was crucial,
since there was a need to protect European IPRs holders and to achieve a
stronger enforcement, “with ACTA this goal can be effectively reached”.
According to him, the core of the debate raised by civil society has
nothing to do with ACTA and it is important to clarify what it’s about
and what it’s not: ACTA is an enforcement Agreement, conceived to
improve the IPRs protection worldwide, it doesn’t touch the EU
substantial law, while its goal is to preserve copyright as outlined by
the EU framework. A failure to ratify it will determine not only a lack
of credibility of the EU institutions among the international community,
but also the loss of a crucial chance to guarantee a minimum level of
IPRs enforcement outside the EU. Moreover, he highlighted that if the EP
rejects ACTA, the Commission is not ready to immediately re-negotiate a
new Treaty: in any case the Commission will wait for the Court’s opinion
and then send it back to the EP.

The second speaker was K. Rossoglu, Senior Legal Officer of the BEUC,
European Consumers´ Organization, who reminded that rights of authors
and creators should be balanced with consumers’ requires: BEUC is very
critical of ACTA because the balance between those two interests is not
met and the dialogue with consumers has been undermined since the
beginning. The treaty seems to be a tool to extend copyright and not to
purely enforce it – it clearly goes against fundamental rights: for
instance art. 27.2 and 3 which speak about a “fair” process, which is
not a “due” process;. Also any right to appeal is set by the treaty and
as a consequence, the right to be heard isn’t safeguarded at all.
Moreover, as the EDPS highlighted, ACTA could threaten data protection
and privacy (i.e. “competent authorities” which are not necessarily
“official authorities”). Mr. Rossoglu also expressed BEUC’s concerns on

A. Mottet Haugaard, Partner Lydian Law Firm (Head of the Intellectual
Property Team), feared that the EP, by rejecting ACTA, would deprive EU
enterprises from crucial tools to fight against counterfeiting:
“counterfeiters are criminals, they’re often well organised as mafia
structures and they profit on the internet tools for easily managing
their illegal business”;. She also bilives that consumers who use
counterfeited goods contribute in developing a criminal economy.
Concerning the negotiations, she said that sometimes it’s better to
discuss such subjects within a closed group of a few people and experts,
otherwise the discussion risks to take years and years before reaching
an agreement. Then she stabbed at the “bobos” who rioted over ACTA;
finally she stated that article 27.4 fully respected fundamental rights.

Joe McNamee, European Digital Rights, pointed out that Article 27.3 of
ACTA would involve the European Union entering into an agreement which
would place a binding international legal obligation on the United
States to encourage the regulation of European communications.This
binding legal obligation would require the United States to encourage
companies under its jurisdiction to effectively enforce trademark and
copyright law. He mentioned these companies that would be encouraged to
enforce the law: for instance, Verisign (the Company that is the central
registry for all .COM websites all over the world), or global search
engines, or advertising networks like Google, payment service or
providers like Paypal, Visa and MasterCard – companies that will need to
comply with the European law, not just with US law. The European Union
also has a Treaty obligation to support democracy and the rule of law in
its international relations. It is also important to consider the
inevitable impact of ACTA on third countries.

In a developing country, with the ACTA signatory government encouraging
privatised enforcement, Internet companies will be coerced into
implementing restrictions of freedom of communication and privacy, due
to the cumulative effect of broad criminal sanctions for aiding and
abetting infringements, the threat of excessive damages payments and the
high cost of fighting injunctions.

He underlined that there was no provision in any part of ACTA that would
require a party to implement any protective measure whatsoever. The
treaty only says that existing legislation does not have to be repealed.
ACTA does not mention fundamental rights, it refers only to the vague
concept of “fundamental principles”, nor does it mention a due process
of law, it refers only to the fictional “fundamental principle of fair
process” which exists nowhere else in international law.

MEP B. Sippel (S&D) from the audience, exhorted to keep in mind that
the question of data protection is fundamental: “we should protect
authors’ rights, but we must avoid to give the opportunity to check
every movements that citizens take”.

During the questions and answers session, a representative of video game
industries association pointed out that ACTA was necessary for their
market. Mr. Rossoglu answered that it wasn’t correct to envisage only
one instrument to govern the whole IPRs, “we should think about
different solutions and several approaches”.

The second panel was focused on freedom of expression, the rights to
privacy and data protection.

H. Lindvall, Swedish songwriter, musician, journalist and music
specialist, opened the panel, saying that copyright was the engine of
freedom of expression and creativity: “it makes us artists to be
independent and live with our music and creations”. In her opinion,
artists need ACTA. Notably she showed that around 90% of the music
industry was made up of SMEs employing fewer than five people, all
relaying on copyright to survive; “we need enforcement of IPRs, like
ACTA: otherwise other solutions will create a corporate feudalism where
the artists would have to go around hat in hand”, she concluded.

J. Zimmermann from La Quadrature du Net intervened in the discussion,
pointing out that the debate was reduced to legal and economic
terms, while ACTA was a political issue with deep implication. It would
reinforce censorship outside the rule of law and freedom of expression
is exposed to infringement by private companies. In particular, he
stressed the importance of redefining the scope of the exceptions for
cultural practices: “not for profit usage between individual must be
considered legal”.

Then the floor went to G. Buttarelli, Assistant at European Data
Protection Supervisor. Firstly he said that EDPS was welcoming
Droustas’ draft opinion as indeed, caution should be exercised with this
kind of subjects. Then he answered the Commission services who argued
that the EDPS was assuming that the agreement would be implemented in a
wrong way by saying that was not true as the EDPS just evaluated the
potential effects in order to highlight possible risks. “The digital
chapter is a masterpiece of ambiguity” he stated. That part does not
contain sufficient limitations and safeguards, such as effective
judicial protection, due process, the principle of the presumption of
innocence, and the right to privacy and data protection. For instance
article 27.4 may interfere with human rights (not only privacy and data
protection), since it opens the door to measures which could degenerate
in internet surveillance – indeed the European Court of Justice itself
has stated that monitoring shouldn’t be general in scope. Article 27.3
is vague, there is a lack of clarity on what does “cooperative
enforcement” mean.

Moreover, an international treaty is premature when there is still
internal certainty on these issues and there is a risk that ACTA has a
negative influence on EU framework (e.g. on the IPRED Directive).
Therefore, the EDPS suggests working on effective measures and to
negotiate more specific safeguards, as well as thinking about additional

Mr. Jenssen, who closed the discussion, noted that the EDPS report
didn’t take in consideration all the safeguards set in the agreement.
When criticising the provisions for being vague, we should have in mind
that they would be implemented in the EU, so they will be made legal and
compatible with fundamental rights.

In his concluding remarks, LIBE Rapporteur on ACTA stressed that the
discussion showed, one more time, how this issue was controversial and,
as a consequence, that further discussions were needed . “We
know that a perfect solution is impossible to reach, but ACTA isn’t up
to what is needed”, he said, adding that where fundamental rights were
involved, ambiguity had to be avoided.

EP ACTA Hearing on 16 May 2012 (some extracts of the NGOs speeches)

(Contribution by Elena Cantelo – EDRi intern)