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Deutsch: Lobbyarbeit für ACTA erreicht neue Dimensionen
When the Commission calls for ACTA support, the chosen ones in industry happily follow. Going back a few months, in November 2011, at an International Fragrance Association event, Pedro Velasco Martins from the European Commission (DG Trade, Deputy Head of Unit, Public Procurement and Intellectual Property) warned parts of industry that the civil society was speaking out loudly on ACTA and that they were losing the public opinion.
In January 2012, under the umbrella of the New York-based International Trade Mark Association, 28 federations and associations released a paper called "ACTA - Why you should support it". Last week, the European Commission launched an intensive lobby -campaign meant for the European Parliament. In three documents, DG TRADE tries to convince the European Parliamentarians that ACTA is simply misunderstood and that it is really important for EU's competitiveness, and seeks to argue that ACTA is the appropriate and balanced tool to protect intellectual property rights, which respect the rights of citizens and consumers.
Amongst the very interesting arguments developed by the European Commission and the trade mark lobby, some are even more intriguing such as the alleged competitive advantage that ACTA would give to EU countries, the balanced approach of ACTA and the sufficient "safeguards" provided by the Agreement. Those allegations can't be left without any comments.
When arguing that ACTA will have a positive impact on EU competitiveness, do they consider that exacerbating the current patchwork of copyright law amongst EU Member States is the solution for better competitiveness? The EU is already at a significant competitive disadvantage due to the incoherence and inconsistency caused by the European rules on copyright - now they propose adding 27 different versions of criminal sanctions to destroy any hope of a "fit for purpose" legal system developing in Europe. Does the Commission or the US-based lobby group wonder why the global Internet success stories are already based in the USA, where the system is and will be more flexible and harmonised? Far from helping innovation in Europe, ACTA will have a chilling effect on innovation in the EU and will benefit the USA, which already has an innovation-friendly single market, when EU is struggling with a complex, non-harmonised and chaotic copyright regime. Moreover, the USA will not consider itself bound by ACTA while the EU will be legally bound.
According to this lobbying effort, ACTA is a balanced agreement, and the adequate tool for the protection of the sectors in need, which preserve the safeguards to the rights of citizens and consumers. If the agreement is so balanced, why do the so-called safeguards in ACTA appear to be so meaningless? ACTA refers to unclear, undefined and non-existing safeguards. The phrasing of ACTA is indeed unsatisfactory. The digital chapter, for example, underlined the need to preserve "fundamental principles", does it refer to fundamental rights? - if so, why does the text not say so? "Fair process" is not even a concept of international law, let alone a "fundamental principle".
Those "safeguards" are even more undermined by footnote 13 associated to Article 27. It explains that limitations on liability of Internet service providers can only be permitted if the interests of rightsholders are first taken into account. The problem here is that the Court of Justice of the European Union has ruled that one set of rights should not be given precedence over another. The fair balance between, on the one hand, intellectual property rights and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information on the other is not achieved by favouring the sole interests of rightsholders. When it comes to fundamental rights, robust safeguards are needed. It is not the case that ACTA's safeguards are weak, it is that they are illusory...
Although they seek to assert that ACTA will not limit civil liberties, they fail to explain how prioritising repressive measures aimed for copyright protection over fundamental rights such as the right to privacy or freedom of communication without guarantees of due process and equality of arms will not have any limitation effects on fundamental rights. In Europe, such an approach violates the European Convention on Human Rights and the EU Charter of Fundamental Rights. If you add to this the legitimisation and promotion of privatised enforcement outside the rule of law within ACTA, you end up with a clear violation of Article 21 of the TEU which requires the European Union to support democracy and the rule of law in the context of its international relations.
In this context, the Development Committee of the European Parliament revealed its draft opinion on ACTA containing many factual errors. EDRi is concerned about many elements in the draft, such as the compliance of ACTA with the EU acquis. The criminal chapter for example is completely outside the EU acquis and as underlined in the European Parliament's DG Expo study conducted in 2011, ACTA "is significantly more stringent and rightholder friendly than the TRIPS Agreement".
Last week, as a protest against the whole ACTA process, the French MEP Kader Arif (S&D) resigned of its function as rapporteur on ACTA. The European Parliament will soon officially be seized on ACTA and one can only hope that the democracy will then make its way through.
INTA: ACTA - Why you should support it (01.2012)
http://www.inta.org/Advocacy/Documents/ACTA%20-%20Why%20You%20Should%2...
European Parliament Directorate-General for External Policies of the Union,
"The Anti-Counterfeiting Trade Agreement (ACTA): An Assessment" (06.2011)
(see page 6 and page 39)
http://www.edri.org/files/DG_EXPO_ACTA_assessment.pdf
US Congress is not bound by ACTA, according to White House answers to Senate
Finance on ACTA and TPP negotiations (19.04.2011)
http://keionline.org/node/1115
Draft Opinion on ACTA - European Parliament INTA Committe
http://www.europarl.europa.eu/meetdocs/2009_2014/documents/deve/pa/888...
(Contribution by Marie Humeau -EDRi)