The Lobby on ACTA is reaching a new level

By EDRi · February 1, 2012

This article is also available in:
Deutsch: [Lobbyarbeit für ACTA erreicht neue Dimensionen |]

When the Commission calls for ACTA support, the chosen ones in industry
happily follow. Going back a few months, in November 2011, at an
International Fragrance Association event, Pedro Velasco Martins from the
European Commission (DG Trade, Deputy Head of Unit, Public Procurement and
Intellectual Property) warned parts of industry that the civil society was
speaking out loudly on ACTA and that they were losing the public opinion.

In January 2012, under the umbrella of the New York-based International
Trade Mark Association, 28 federations and associations released a paper
called “ACTA – Why you should support it”. Last week, the European
Commission launched an intensive lobby -campaign meant for the European
Parliament. In three documents, DG TRADE tries to convince the European
Parliamentarians that ACTA is simply misunderstood and that it is really
important for EU’s competitiveness, and seeks to argue that ACTA is the
appropriate and balanced tool to protect intellectual property rights, which
respect the rights of citizens and consumers.

Amongst the very interesting arguments developed by the European Commission
and the trade mark lobby, some are even more intriguing such as the alleged
competitive advantage that ACTA would give to EU countries, the balanced
approach of ACTA and the sufficient “safeguards” provided by the Agreement.
Those allegations can’t be left without any comments.

When arguing that ACTA will have a positive impact on EU competitiveness, do
they consider that exacerbating the current patchwork of copyright law
amongst EU Member States is the solution for better competitiveness? The EU
is already at a significant competitive disadvantage due to the incoherence
and inconsistency caused by the European rules on copyright – now they
propose adding 27 different versions of criminal sanctions to destroy any
hope of a “fit for purpose” legal system developing in Europe. Does the
Commission or the US-based lobby group wonder why the global Internet
success stories are already based in the USA, where the system is and will
be more flexible and harmonised? Far from helping innovation in Europe, ACTA
will have a chilling effect on innovation in the EU and will benefit the
USA, which already has an innovation-friendly single market, when EU is
struggling with a complex, non-harmonised and chaotic copyright regime.
Moreover, the USA will not consider itself bound by ACTA while the EU will
be legally bound.

According to this lobbying effort, ACTA is a balanced agreement, and the
adequate tool for the protection of the sectors in need, which preserve the
safeguards to the rights of citizens and consumers. If the agreement is so
balanced, why do the so-called safeguards in ACTA appear to be so
meaningless? ACTA refers to unclear, undefined and non-existing
safeguards. The phrasing of ACTA is indeed unsatisfactory. The digital
chapter, for example, underlined the need to preserve “fundamental
principles”, does it refer to fundamental rights? – if so, why does the text
not say so? “Fair process” is not even a concept of international law, let
alone a “fundamental principle”.

Those “safeguards” are even more undermined by footnote 13 associated to
Article 27. It explains that limitations on liability of Internet service
providers can only be permitted if the interests of rightsholders are first
taken into account. The problem here is that the Court of Justice of the
European Union has ruled that one set of rights should not be given
precedence over another. The fair balance between, on the one hand,
intellectual property rights and the freedom to conduct business, the right
to protection of personal data and the freedom to receive or impart
information on the other is not achieved by favouring the sole interests of
rightsholders. When it comes to fundamental rights, robust safeguards are
needed. It is not the case that ACTA’s safeguards are weak, it is that they
are illusory…

Although they seek to assert that ACTA will not limit civil liberties, they
fail to explain how prioritising repressive measures aimed for copyright
protection over fundamental rights such as the right to privacy or freedom
of communication without guarantees of due process and equality of arms will
not have any limitation effects on fundamental rights. In Europe, such an
approach violates the European Convention on Human Rights and the EU Charter
of Fundamental Rights. If you add to this the legitimisation and promotion
of privatised enforcement outside the rule of law within ACTA, you end up
with a clear violation of Article 21 of the TEU which requires the European
Union to support democracy and the rule of law in the context of its
international relations.

In this context, the Development Committee of the European Parliament
revealed its draft opinion on ACTA containing many factual errors. EDRi is
concerned about many elements in the draft, such as the compliance of ACTA
with the EU acquis. The criminal chapter for example is completely outside
the EU acquis and as underlined in the European Parliament’s DG Expo study
conducted in 2011, ACTA “is significantly more stringent and rightholder
friendly than the TRIPS Agreement”.

Last week, as a protest against the whole ACTA process, the French MEP Kader
Arif (S&D) resigned of its function as rapporteur on ACTA. The European
Parliament will soon officially be seized on ACTA and one can only hope that
the democracy will then make its way through.

INTA: ACTA – Why you should support it (01.2012)

European Parliament Directorate-General for External Policies of the Union,
“The Anti-Counterfeiting Trade Agreement (ACTA): An Assessment” (06.2011)
(see page 6 and page 39)

US Congress is not bound by ACTA, according to White House answers to Senate
Finance on ACTA and TPP negotiations (19.04.2011)

Draft Opinion on ACTA – European Parliament INTA Committe

(Contribution by Marie Humeau -EDRi)