GREENS / EFA GROUP IN THE EUROPEAN PARLIAMENT
ANOTHER BRICK IN THE WALL
ACTA: A DANGEROUS, ILLEGITIMATE, OVERSTRETCH OF LAW ENFORCEMENT
POSITION PAPER, ADOPTED 31 MAY 2011
At the G8 summit, the Anti-Counterfeiting Trade Agreement (ACTA) signing procedure will be initiated by its negotiating parties, namely the US, the EU, Switzerland, Japan, Canada, Australia, Mexico, Morocco, New Zealand, Korea and Singapore. Its official purpose is to set a legally binding framework for the enforcement of standards on intellectual property rights. Its overly extensive target includes counterfeit goods, generic medicines and copyright infringement on the net.
By nature, substance and object Acta is unacceptable. Not only from a Green point of view, but more largely from a European point of view, Acta is in breach of two fundamental principles: democracy and fundamental freedoms.
Unacceptable by nature – a failed legitimacy
In its process, Acta challenges the usual classification of international agreement, and is some kind of a legal UFO whose nature is in breach of many basic democratic principles: accountability, reversibility, transparency.
1. Acta empties out multilateralism: Negotiated behind closed doors by its parties, leaving out developing countries, without any democratic accountability at UN, EU or national level, in spite of the clear rules set by the UN for international negotiations.
2. Acta avoids most democratic decision-making processes: Extreme secrecy, lack of transparency and the agreements objectives, absence of impact studies on proposed provisions are all ominous signs of a will to bypass the necessary public debate on the substance of the agreement. The broader public was made aware of the negotiations only through leakages was made aware of the negotiations.
3. Acta puts technocracy above national sovereignty and European law: This negotiating mechanism supersedes State sovereignty, overstretches the EU acquis and exceeds the European Commission’s mandate. In whose interest does the Commission negotiate Acta? Where is the mandate given to the Commission to negotiate such broad range of matters as covered by the agreement up to challenging the current state of EU law? ?One example: While no criminal IP enforcement measures presently exist in the EU, ACTA does include criminal sanctions in both its art. 23.4 and 23.10. This kind of modification to EU-law cannot bypass any Parliament, be it national or European.
In addition, a steering committee above States will be in a position to amend the agreement after it is adopted and implemented. Rules that will govern this committee and its actions are unclear but do not include any kind of democratic representation.
Unacceptable in substance – a threat to fundamental freedoms
4. Acta privatizes the rule of law and its enforcement: It allows criminal sanctions to target Internet technical intermediaries and providers to force them into “cooperation” with the right-holders. As a consequence, Acta would help to coerce them into policing the net. Private agents would become the justice and police of the Internet.
5. Acta would breach the judicial principles of proportionality and fairness:
Proportionality: Under Acta alleged infringer would be ordered to disclose to the right-holders or judicial authorities any information about the origin and distribution network of infringing goods and services, including information about anyone involved in the production and supply chain. ?Fairness: Acta requires mandatory proceedings without providing defendants an opportunity of hearing.
6. Acta blurs out the definitions of “counterfeiting” and “infringement”: In spite of its “anti-counterfeiting” purpose, Acta puts together in the same category trademarks, patents, copyrights, data protection, integrated circuit protections, trade secrets, and other laws. Although they’re not the same in most trademark laws, it neither gives a precise definitions of trademark “counterfeit” versus “infringement”.
In addition “patent infringement” is not “counterfeiting”: it’s not about faking a good’s genuine look or fraudulent imitation. In many sectors, there are so many patents, with unclear scope and validity, it is impossible to tell whether a product violates a patent. Acta provisions on patent are unreasonable and oppose business, especially as the huge increase in the number of patents globally (US, China, etc) create a legal minefield in many industrial field. ?One example: perfectly legal generic medicines could be seized simply on the mere suspicion of patent infringement.
The spirit of Acta is to give right-holders almost direct jurisdiction on an extremely loose definition of “infringement” making them literally the judicial authority, through seeking interim injunction and provisional seizure of allegedly infringing goods without being required to prove within a reasonable period that the goods are indeed infringing.
Unacceptable in object – a dangerous move to privatise knowledge and life
Acta is but another attempt to privatise knowledge and access to knowledge under the heading of fighting “counterfeiting”. Its boldest assumption is the tacit and systematic equivalence of “counterfeited goods”, “unauthorised generic drug” and “copied digital file”.
7. Acta favours anti-competition behaviours and can harm global trade: Excessive civil measures against “patent infringements”, which are not “counterfeiting”, can be used to deter competition and exert control over global markets. Under Acta, holders of huge patent portfolios could try and eliminate competition from start-ups and SMEs; especially as it would be required from judicial authorities to order the recall, removal or destruction of the suspected infringing goods.
One example: Monsanto could have rice crops in-transit from Thailand to Ehtiopia seized, and possibly destroyed, by customs in Singapore on the claim that it suspects the shipment is infringing one of its seed patents.
8. Acta favours primarily big US companies: If Acta is legally binding for the EU and its member states, according to US officials it would remain only a voluntary global benchmark for the US who consider it as a “voluntary agreement”. Therefore, ACTA will give a competitive advantage to US businesses who will enjoy a more flexible system, for example with the US “fair use” of copyrighted material, while European innovation, especially SMEs will be constrained by the binding obligations of ACTA and other new EU legislations that will increase costs and risks in Europe with regards to copyright enforcement.
Why Acta must be rejected
As international legal means against counterfeiting are already available (see the TRIPS agreement, 1994) and EU rules already provide for measures against counterfeiting;
As endangering public health (fake or non-approved medicines) is already criminally prosecutable, regardless of patents/trademarks breach;
As direct impact on counterfeiting traffic would prove minimal (China is not part of Acta) and implementation costs disproportionately high for public finances;
the purpose of Acta seems to aim elsewhere.
Hence the clear discrepancy between the title of the agreement (and alleged goals) and the actual content of Acta calls its purpose into question.
When you realise who its earliest and most active promoters are, it appears that Acta is definitely just another brick in the legal walls that big companies are trying to erect in order to defend and their business model against new forms of competition and thus their control of the global markets.
Other bricks are currently being shaped, as the InternetG8 scheduled and the next IPR strategy drafted by Commissioner Barnier.
As Parliament will, probably in autumn, have to give its consent to what the European Commission has negotiated so far, it is of paramount importance that a broad coalition defeats this undemocratic, ill-devised, freedom-threatening agreement by denying the EC Parliament’s consent.