ENDitorial: Mobilizing to Stop ACTA

By EDRi · November 18, 2009

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Deutsch: [ENDitorial: Mobilisierung um ACTA zu stoppen | http://www.unwatched.org/node/1595]

The negotiating partners of ACTA have announced that the next round of
negotiations on ACTA will take place in Mexico in January and have promised
to conclude the agreement in 2010. As the last edition of the EDRi-gram
exposed, the Internet Provisions of ACTA lay down a global foundation for
riposte graduée, a global DMCA, and increased authority for border guards to
implement an information customs regime. This global secret copyright treaty
seems unstoppable, but it stands on some fragile footing.

Not everyone was taken by surprise. The Foundation for a Free Information
Infrastructure (FFII) and especially Ante Wessels, has been working on a
sharp and thorough analysis of ACTA for quite a long time that sets forth
the issues of concern and points out the weak spots in ACTA’s armor. La
Quadrature du Net also has set up a web dossier on ACTA, the OpenNet
Coalition behind the Blackout Europe campaign has been getting prepared, and
the Werebuild.eu project wiki has an ACTA page.

The European Parliament has already spoken clearly in the Susta Report last
year on the expectations for transparency to European citizens, the
limitations of the Commission’s competence on the criminal provisions, the
protection of privacy, and other public interest concerns about this closed
door pact of global impact.

And this time, artists have come out to show their support for the Open
Internet and not be used as pawns in the entertainment industry’s attempts
to rig an international regime to preserve their business models. The Free
Culture Forum has released their Charter for Innovation and Access to
Knowledge. The Trans-Atlantic Consumer Dialogue recently concluded the
second round of the Paris Accord, negotiating an agreement between consumers
and artists.

Now, Christian Engström, Member of European Parliament (Pirate Party) has
invited the Internet community to help him shape a question on ACTA and the
Telecom Package, to which the European Commission and Council are obliged to
respond. Below are some brief thoughts intended to engage a fuller
discussion on four areas of intersection between ACTA and the Citizen’s
Rights Amendment (138) of the Telecom Package: (1) Judicial obligations; (2)
Privacy; (3) Fundamental Rights; and (4) EU Competence.

First, in regards to obligations for adjudication and enforcement on the
members states, it was a long and hard fought battle over the essence of
Amendment 138 as requiring a prior judicial ruling before termination of
Internet access. Conveniently prepared just weeks before the final
Conciliation, the legal services of the European Parliament issued an
opinion that the EU’s meddling in such civil and criminal procedures is
outside the competence of the EU. Well, now it turns out that ACTA not only
wants to increase the ex officio authority of border guards, it also delves
quite specifically into changes in the remedial powers of the court,
including the calculation of damages, the mandatory availability of
injunctions, the scope of criminal sanctions, and rules regarding search and
seizure. Does the hurried legal memo apply for this vast overreach on
shaping global norms as well? The European Parliament should inquire as to
the changes ACTA may require of Members States regarding their civil and
criminal procedure.

Second, ACTA can only be agreed upon by the negotiating partners if it does
not require a change in their own laws. As the Director of the Mexican IP
Office who will be hosting the next ACTA negotiations has declared that they
are “not going to negotiate something that is outside of our legislation,
which goes against the constitution, laws or the criminal code.” There are
of course differences between the diverse countries taking part in the
negotiations of ACTA. A significant difference in legal framework is in
regards to privacy, especially between the US and EU. The final Amendment
138 text emphasized the increased standard of the privacy right and the
presumption of innocence, so that their priority is preserved in the
balancing of interests when in conflict with IP enforcement, for example.
The European Parliament must make sure the general public is aware of the
potential privacy implications of ACTA well before it is concluded.

Third, it is important to remember that the fundamental rights and freedoms
ACTA impacts is not only in regards to the Internet, but is also harmful to
the global Access to Medicines. The Dutch drug seizure scandal should of
life-saving treatments that were in transit from India to Brazil confiscated
for patent infringement even though they were not under patent at neither
the origin nor destination of shipment. The leaked copies of the ACTA text
contain “in-transit” provisions that would give pharmaceutical companies the
power to control the distribution of generic versions of essential
medicines. (These “in-transit” provisions would also then presumably mean
that an electronics product that contains hardware or software under patent
in one country but not another could also be seized.) The European
Parliament should clarify how ACTA will impact the distribution of medicines
and textbooks, and the impact on accessibility and the availability of
library information across borders.

Finally, in regards to EU competence, it is a great stretch for the Article
133 Committee of the European Commission DG Trade to claim proper competence
for the sweeping changes proposed in the ACTA on a broad range of policy
issues. As the FFII analysis and the Ombudsman complaints reveal, ACTA goes
beyond the acquis communitaire in several important areas. The criminal
provisions of ACTA in particular clearly lie outside its competence, which
is why a couple representatives from the Council were reportedly invited to
previous negotiations to satisfy the need for a common accord with the
European Members States, despite the requirement for unanimity in European
Council. And as EDRi’s Joe McNamee reminded us, the European Commission is
opening up the issues of third-party liability in the Internet Provisions
even though Parliament expressly declared that it shouldn’t. The European
Parliament should ask for clarification on how it is justified that those
questions which are at the forefront of the controversies and debates over
digital rights and access to knowledge, which are now in the midst of the
legislative process, can be decided behind closed doors for the world,
without public input and democratic participation.

EDRi-gram: ENDitorial: ACTA revealed, European ISPs might have a big problem

FFII: ACTA analysis

La Quadrature: Acta


We Re-Build: ACTA

Free culture forum: Charter for Innovation, Creativity and Access to

The Paris Accord Round II (23-24.10.2009)

Question on ACTA and the Telecoms Package (15.11.2009)

Question on ACTA and the Telecoms Package

Report on the impact of counterfeiting on international(8.11.2008)

Interview with Jorge Amigo, Director of IMPI about #ACTA (13.11.2009)

HAI Statement – Release of generic ARV medicines by Dutch Customs
Authorities (20.03.2009)

Trade Talks Hone in on Internet Abuse and ISP Liability (3.11.2009)

(Contribution by Eddan Katz – EDRi-member Electronic Frontier Foundation –