March 25, 2012

Letter to EP Civil Liberties Committee

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The FFII just sent a letter to the ACTA rapporteur for the European Parliament Civil Liberties, Justice and Home Affairs Committee. The Committee will exchange views on ACTA in its meeting on Monday 26 March 2012, 15.00 — 18.30.

See below or the pdf.

——–

Dear Mr Droutsas,

The European Commission announced it will refer the Anti-Counterfeiting Trade Agreement (ACTA) to the European Court of Justice. While this step will provide further analysis, we find it important to note that the Court may choose to leave the political process much space. The Court will then only marginally test ACTA.

To give the Parliament political space, the Court may decide to highlight problematic aspects, without finding a fatal flaw. This would obscure that the EU and the world need robust safeguards that will stand even under pressure. Such pressure will certainly come. To give a rather awkward example, DG Trade and the US Trade Representative use a more limited interpretation of the Doha Declaration on the TRIPS Agreement and Public Health than the original WTO interpretation. [1]

The enforcement of intellectual property rights has reached such an intrusive level that safeguarding fundamental rights is essential for citizens, consumers, artists, start up companies, competitors and innovators. ACTA is anything but robust with regards to fundamental rights. ACTA will also create a non transparent Committee.

NGOs and academics raised serious concerns regarding the impact ACTA will have on fundamental rights. [2] For our members the heightened damages based on retail price, the intrusive injunctions and criminal measures are most worrisome. [3]

Korff and Brown, fundamental rights experts, wrote regarding damages: “In our opinion, here too ACTA is deficient: without express clarification to the effect that damages awarded to right holders must be a reasonable reflection of actual loss, equitably assessed by a court (rather than an exaggerated assessment based on an unchallengeable but rigged formula), the Agreement violates both the right to property and the right to a fair (civil) trial of the defendants.”

Regarding criminal measures, Korff and Brown wrote: “In our opinion, ACTA, by not including a de minimis exception to its compulsory and draconian enforcement regime, fails to ensure adequate protection of the right to freedom to obtain and disseminate information, the right to freedom from unreasonable search and arrest, the right to inviolability of the home, and the right to the peaceful enjoyment of one’s possessions, and thus violates those rights.” [4]

In third countries with less protection of fundamental rights, the situation will be worse than in the EU, a violation of article 21 Treaty on European Union (TEU).

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 draconian measures. ACTA does not seem compatible with art 3.5 TEU.

ACTA will be ineffective since it disregards global and regional pricing problems. For instance, media piracy is probably better described as a global pricing problem, according to the Media Piracy in Emerging Economies report. [5]

In emerging economies, an elite of 5 to 10% of the people has an income comparable with a median income here in Europe. The much larger majority has an income that is much lower. Still, CDs and DVDs are sold in emerging economies for the same prices as here in Europe. Some 90% of the people do not have access to affordable legal CDs and DVDs. Their only solution is to buy illegal copies. Under these circumstances, stronger enforcement will not work.

Sadly, medicines too, are often sold for the same prices in middle income countries as here in Europe. [6] The social costs of the present system are already too high. The global pricing problem also plays a role in diffusion of green technology, needed to fight climate change. [7] The same dynamics apply, at least in part, to global counterfeiting. [8]

An approach, like ACTA, that does not solve global pricing problems, but only heightens enforcement, will not solve global media piracy and counterfeiting problems, but will only increase social costs. ACTA is fundamentally disproportional.

Europe itself faces a regional pricing problem. As incomes in Eastern European countries are often much lower than in Western European countries, for many in Eastern European countries the only solution is to buy illegal media copies. EU law is already harsh for these European citizens, ACTA will heighten the unjustified pressure – a violation of TEU art 3.3.

I am happy to discuss ACTA more generally, so please do not hesitate to contact me directly at + 31610099063 or by email at ante@ffii.org

Yours sincerely,

Ante Wessels

Foundation for a Free Information Infrastructure

[1] http://www.keionline.org/node/1267

[2] http://acta.ffii.org/?p=1156

[3] http://acta.ffii.org/?p=992

[4] Douwe Korff & Ian Brown, Opinion on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights, 2011:
http://rfc.act-on-acta.eu/fundamental-rights

[5] Media Piracy in Emerging Economies, edited by Joe Karaganis.
http://piracy.ssrc.org

[6] A Trade Barrier to Defeating AIDS, Tina Rosenberg:
http://opinionator.blogs.nytimes.com/2011/07/26/a-trade-barrier-to-defeating-aids/

[7] http://acta.ffii.org/?p=675

[8] Enforcing European Intellectual Property Rights in Europe and in Third Countries – The Quest for Balance; Prof. Annette Kur, MPI Munich:
http://www.se2009.eu/polopoly_fs/1.28342!menu/standard/file/Kur%2C%20Max%20Planck.pdf (or http://bit.ly/GPrTCg )