January 23, 2012

Letter to EP Committee on Development

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As we reported earlier, tomorrow, Tuesday 24 January 2012, around 16.30 Paris time, the European Parliament Committee on Development will hold an exchange of views on ACTA. Today, the FFII sent the committee a letter. (pdf version)

Dear Members of the Committee on Development,

We are writing to express our concerns with the Anti-Counterfeiting Trade Agreement (ACTA). Below we will present points which we believe are essential for a proper assessment of ACTA’s impact on development.

1. ACTA is not only TRIPS plus, ACTA even goes beyond current EU law, the acquis. Prominent European academics [European Academics, 2011] and the study commissioned by the EP International Trade committee (INTA) [INTA, 2011] pointed this out. While the Parliament’s legal service concludes that on the face of it, ACTA appears to be in line with current EU law, it could only reach this conclusion by consistently overlooking known issues. [FFII-922] ACTA’s damages based on retail price lead to damages based on an imaginary gross revenue, which is way beyond actual loss suffered. Its border measures have a broader scope, its injunctions and provisional measures are more intrusive. The INTA study recommends asking the European Court of Justice an opinion on ACTA.

2. If development and fair trade would have been the intention, the EU should have chosen to further balance, in the World Trade Organization, the TRIPS agreement.

3. The 61 pages Douwe Korff & Ian Brown opinion applies fair balance tests to ACTA. How are, for instance, the right to property and the right to freedom of expression, balanced in ACTA? Their conclusions are 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).” [Korff & Brown, 2011]

4. Regarding fundamental rights, Korff & Brown conclude: “Overall, ACTA tilts the balance of IPR protection manifestly unfairly towards one group of beneficiaries of the right to property, IP right holders, and unfairly against others. It equally disproportionately interferes with a range of other fundamental rights, and provides or allows for the determination of such rights in procedures that fail to allow for the taking into account of the different, competing interests, but rather, stack all the weight at one end.

This makes the entire Agreement, in our opinion, incompatible with fundamental European human rights instruments and standards.” [Korff & Brown, 2011]

5. In third countries with less protection of fundamental rights, ACTA will have a more negative impact than in the EU. By ratifying ACTA, the EU would violate article 21 Treaty on European Union, the obligation to promote democracy, the rule of law, human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.

Nor is ACTA is compatible with articles 17 and 19 of the UN International Covenant on Civil and Political Rights (ICCPR). [ARTICLE 19, 2011]

6. Civil society groups (for instance [Oxfam, 2011] and [Public Citizen, 2011]) and an academic opinion [Flynn, Madhani, 2011] pointed out problems with access to medicine. The ACTA text only mentions the Doha Declaration once in the non binding ACTA preamble. The combination of heightened measures with a non binding reference to the Doha Declaration, and DG-Trade and the US Trade Representative undermining the Doha Declaration in other fora does not provide sufficient safeguards for access to medicine. [FFII-922]

7. Regarding criminal measures, the WTO dispute settlement panel definition of commercial scale (US versus China case) leaves countries policy space to find a proportional solution. ACTA deliberately overturns this definition. ACTA removes the scale element from the definition of the crime. ACTA does not have a public interest exemption either. As a result, ACTA criminalises everyday computer use. ACTA can be used to criminalise newspapers and websites revealing a document, office workers forwarding a file, people making a private copy and whistle-blowers revealing documents in the public interest. ACTA criminalises almost everyone with a computer – who never forwarded an email? ACTA also criminalises aiding and abetting, which puts pressure on Internet Service Providers, who may decide to pre-emptively censor Internet communications. [ARTICLE 19, 2011; FFII-922]

8. ACTA will not solve global media piracy. High prices for media goods, low incomes, and cheap digital technologies are the main ingredients of global media piracy. Relative to local incomes in Brazil, Russia, or South Africa, the price of a CD, DVD, or copy of Microsoft Office is five to ten times higher than in the United States or Europe, the Media Piracy in Emerging Economies report shows. [Karaganis, 2011] There is no distribution of legal CDs and DVDs outside the capitals. Some 90% of the people in emerging economies can only turn to illegal media copies. Stronger enforcement can not solve the piracy problem, which is basically a global pricing problem, a sign of market failure.

The costs in social welfare of harsh measures are enormous. ACTA is not compatible with article 15 of the UN International Covenant on Economic, Social and Cultural Rights (ICESCR). [FFII-922]

9. In January 2011, European academics issued an “Opinion of European Academics on ACTA”. The academics invite the European institutions, in particular the European Parliament, and the national legislators and governments to withhold consent of ACTA, “as long as significant deviations from the EU acquis or serious concerns on fundamental rights, data protection, and a fair balance of interests are not properly addressed”. [European Academics, 2011]

10. According to the EP INTA study, “There does not therefore appear to be any immediate benefit from ACTA for EU citizens”. [INTA , 2011]

11. ACTA will negatively impact innovation, competition, development, fair trade, start up companies, mass digitization projects, access to medicines and Internet governance. ACTA threatens the rule of law and fundamental rights. These negative consequences will impact the EU as well.

We call upon the Parliament to say no to ACTA.

Yours sincerely,

Ante Wessels

Foundation for a Free Information Infrastructure

attachment: this letter (pdf)


[ARTICLE 19, 2011] ARTICLE 19 http://www.article19.org/resources.php/resource/2901/en/european-parliament:-reject-anti-counterfeiting-trade-agreement-%28acta%29

[European Academics, 2011] Opinion of European Academics on ACTA http://www.iri.uni-hannover.de/acta-1668.html

[FFII-922] FFII note on the Legal Service’s Opinion on ACTA http://acta.ffii.org/?p=992

[Flynn, Madhani, 2011] Sean Flynn with Bijan Madhani, ACTA and Access to Medicines http://rfc.act-on-acta.eu/access-to-medicines

[INTA, 2011] European Parliament INTA study http://www.erikjosefsson.eu/sites/default/files/DG_EXPO_Policy_Department_Study_ACTA_assessment.pdf

[Karaganis, 2011] Media Piracy in Emerging Economies, edited by Joe Karaganis http://piracy.ssrc.org

[Korff & Brown, 2011] 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

[Oxfam, 2011] Oxfam Statement regarding ACTA and Public Health http://www.oxfamsol.be/fr/IMG/pdf/Oxfam_ACTA_analysis_FINAL.pdf

[Public Citizen,2011] Public Citizen http://www.citizen.org/documents/Letter-to-Members-of-the-Committee-on-Legal-Affairs-on-the-ACTA.pdf