The European Parliament’s register released the International Trade (INTA) committee’s coordinators’ minutes on ACTA (Anti-Counterfeiting Trade Agreement). Prior to the release, the Parliament’s services denied the existence of these minutes four times. Only after the FFII provided proof that the documents do exist, the Parliament released them. The minutes document illegal decisions. On 21 June 2011, the coordinators of the INTA committee decided to ask the Parliament’s legal service an opinion on ACTA.
When the European Parliament adopted its position on the proposed EU draft directive on criminal sanctions they also included the following safeguards, a fair use provision. Member States shall ensure that the fair use of a protected work, including such use by reproduction in copies or audio or by any other means, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, does not constitute a criminal offence. The MEPs also amended the proposal from the Commission on the matter of parallel importation:
Criminal sanctions shall not be applied in cases of parallel importation of original goods which have been marketed with the agreement of the right-holder in a country outside the European Union. As announced in Official Journal C 252 of 18 September 2010 the European Commission decided to withdraw their proposal for a Directive on the criminal enforcement of intellectual property rights because member states didn’t want to adopt it. In particular the Dutch parliament notified the Commissioner Frattini that the EU lacks competence to adopt these measures.
The European Commission released the (final) negotiator’s Notes on ACTA on 6 October 2011. Request for access to documents – Gestdem 2011-4206
Dear Mr Wessels,
I refer to your request of 1 August, 2011 in which, you ask to receive the Commission’s Negotiator’s Notes on ACTA. As regards the so-called “negotiators’ notes”, let me first clarify their nature. “Negotiators’ Notes” have been added in the evolving versions of the draft negotiating text (the “consolidated” text) as footnotes. These “Negotiators’ Notes” varied considerably in content: some were mere reminders for a verification of the coherence of language at the final “legal scrub” or for the applicability of a certain definition already used somewhere else in the text, while others were added to reflect the interpretation that one or more Parties had of a certain concept.
The European Parliament’s Legal Services’ opinion on ACTA is ready. And it is secret! Not only that, according to rumors in Parliament, it is positive about ACTA. So we have prominent academics and fundamental rights experts pointing out problems with ACTA, and then in a secret opinion the Parliament’s Legal Services says it is fine. This is very strange, since the earlier opinions were excellent.
The European Parliament services denied the existence of INTA coordinators’ minutes (regarding ACTA) four times. Under EU law, Institutions can refuse access to documents in some cases. But EU law does not provide a possibility to deny or obfuscate the existence of documents. See our 5 October letter to the INTA secretariat. Dear INTA secretariat,
I would like to kindly thank you for your elaborate answer to my request for information and documents.
Brussels, 14 October 2011 — In an open letter to the members of the European Parliament Civil Liberties Committee, the FFII (Foundation for a Free Information Infrastructure) urges them to formulate an opinion on ACTA (Anti-Counterfeiting Trade Agreement). ACTA is a multilateral agreement which proposes international standards for enforcement of intellectual property rights. According to the FFII, research has shown serious fundamental rights issues. A group of prominent European academics published an opinion on ACTA. They conclude that certain ACTA provisions are not entirely compatible with EU law and will directly or indirectly require additional action on the EU level.
Professor Douwe Korff, London Metropolitan University, and Ian Brown, Senior Research Fellow, Oxford Internet Institute, University of Oxford, prominent fundamental rights experts, wrote an elaborate study on ACTA, they conclude ACTA violates fundamental rights. Their conclusions are rather devastating:
ACTA was negotiated in unwarranted secrecy, without adequate input from civil society or parliamentarians, but in close cooperation with major IP right holders. Not surprisingly, this resulted in a text that gives disproportionate protection to big business; fails to level the playing field between developed and developing nations in international trade relations; hampers innovation (especially by SMEs); fails to promote grassroots culture; and could impede the dissemination of knowledge for people across the world (and access to health care and generic medicines). Human rights were effective ignored, apart from the inclusion in the Agreement of vague and ineffective “without prejudice” clauses that fail to redress the balance, and are little more than fig-leaves. The inclusion of a detailed provision on the need to respect human rights in the protection of IPR, on the lines of the “138 Amendment” to Directive 2002/21/EC, was rejected as “not needed”.
EU level Criminal law is a very delicate issue. In the European Parliament a new document from the Commission would be examined: “Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law”. Criminal law measures comprise intrusive rules, which can result in deprivation of liberty. This is why the Charter of Fundamental Rights – made legally binding by the Lisbon Treaty – provides important limits for EU action in this field. The Charter, being the compass of all EU policies, provides for a binding core of rules that protects citizens.
On Saturday, October 1, 2011, parties that have completed relevant domestic processes will sign ACTA (Anti-Counterfeiting Trade Agreement). For background information on who will sign, see: Who is Signing ACTA: State of Play Cont’d (EU will not sign)
FFII (Foundation for a Free Information Infrastructure) statement:
The world faces major challenges: access to medicine, diffusion of green technology needed to fight climate change, and a balanced Internet governance. While flexibility is essential to solve these major issues, ACTA codifies heightened measures. To stimulate startup companies, the EU legal situation should minimize market entrance risks for innovators. In digital markets, innovators are often confronted with patent minefields.
A few years ago, an amendment making sure that parallel importation was not criminalised in the EU disappeared after it was adopted in the European Parliament. This summer, the Chairman of the International Trade committee (INTA), Mr Vital Moreira, rewrote a question the INTA committee asked the Parliament’s Legal Services regarding ACTA (Anti-Counterfeiting Trade Agreement). The INTA Chairman among others things left out a reference regarding parallel importation. Up until now, no member of the INTA committee questioned the behavior of the INTA Chairman. (See update below.)
While prominent legal experts conclude ACTA is not compatible with EU law, EU Treaties and fundamental rights, MEPs (Members of the Parliament) expect the Legal Services to conclude ACTA is fine.