European Commission stumbles in ACTA opinion rebuttal

This article is also available in:
Deutsch: [EU-Komission strauchelt bei Entgegnung auf ACTA-Stellungnahme | http://www.unwatched.org/EDRigram_9.9_Kommission_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)
http://acta.ffii.org/wordpress/?p=598

Comments on the “Opinion of European Academics on Anti-Counterfeiting Trade
Agreement” (27.04.2011)
http://trade.ec.europa.eu/doclib/docs/2011/april/tradoc_147853.pdf

Opinion of European Academics on ACTA (20.01.2011)
http://acta.ffii.org/?p=373

(contribution by Jonas Maebe – volunteer with the EDRi-member Liga voor
Mensenrechten, Belgium)