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Dear ..., (no wiki markup)
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We write to express our concerns about the Anti-Counterfeiting Trade Agreement
(ACTA) under negotiation. The ACTA negotiation process violates the
transparency requirements of the "Protocol on the role of the national
parliaments in the European Union". We call upon you to ensure that these
requirements are respected and not circumvented. In this letter we will
address competence, subsidiarity, proportionality and transparency issues.
We call upon the Parliaments of Europe to set parliamentary scrutiny reservations on the Anti-Counterfeiting Trade Agreement (ACTA). It may be the only way to stop silent adoption in the Council.
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Behind closed doors, the EU, US, Japan and other countries are negotiating ACTA. No drafts are published. Leaked documents show the negotiating parties use a very broad definition of piracy. In an obfuscated way, the definition comes down to "willful, large scale infringements". As a result, bona fide entrepreneurs and civilians are criminalized, and excessive civil and administrative measures can be invoked against them. The following examples may fall under ACTA:
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== Introduction on ACTA + a newspaper, whistle blower or weblog author revealing a document,
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Behind closed doors, the EU, US, Japan and other countries are negotiating the
Anti-Counterfeiting Trade Agreement (ACTA). On its website, the European
Commission calls ACTA "path breaking". A U.S. government spokesman said that
the ACTA text will only be made public after the parties have agreed to the
actual text. In the U.S., ACTA is treated as an Executive Agreement, meaning
that it will not go through the US Congress for approval.
+ ambiguous cases of trademark confusion,
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The U.S. Senate Judiciary Committee expressed concerns about this modus
operadi: "We are concerned, however, that the ACTA under consideration will
prescribe rules for protection so specifically that it could impede
Congress's ability to make constructive policy changes in the future. (...)
Regarding the potential breadth of ACTA, we strongly urge you not to permit
the agreement to address issues of liability for service providers or
technological protection measures." [senate]
+ parallel importation (buying and selling of genuine products),
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More than a 100 public interest organisations from around the world have
called on officials from the countries negotiating ACTA to immediately
publish the draft text of the agreement. [100g] Based on leaked documents and
industry comments on the proposed treaty, the groups expressed concerns that
ACTA may:
+ making a product or medicine (in many sectors, there are so many patents, with unclear scope and validity, it is impossible to tell whether one violates a patent),
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+ Require Internet Service Providers to monitor all citizens' Internet
communications;
+ the production of spare parts (may violate an unexamined design right, with unclear scope and validity),
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+ Interfere with fair use of copyrighted materials; + an office worker emailing a copy of a market research report to his colleague at work,
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+ Criminalize peer-to-peer electronic file sharing; and + emailing a list of people (may violate an unexamined database right, with unclear scope and validity),
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+ Undermine access to low-cost generic medicines. + a library, in order to preserve digital sound recordings for posterity, unlawfully breaking the technical protection measure wrapping the digital recording each time it lawfully receives a sound recording either by purchase or by legal deposit,
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We share these concerns and support the call for transparency. + youngsters enthusiastically sharing their favorite music with friends.
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In all these cases, the rights holder can go to a civil court for damages. But harsh anti-piracy measures, meant to fight criminal organizations, are excessive. A too broad definition may have far reaching consequences on legal certainty, innovation, competitiveness, freedom of speech, privacy and access to medicines, software and the Internet. ACTA could become a dangerous tool for abusive strategies.
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== Transparency It is essential the public and parliaments can scrutinize ACTA. It is unclear whether they will be able to do that. It is unclear whether the final draft will be published prior to Political Agreement in the EU Council. ACTA may pass silently during Parliamentary recess.
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ACTA has three major legs: International Cooperation, Enforcement Practices,
and Legal Framework. In this letter we will concentrate on ACTA providing a
new legal framework.
In the EU decisions are normally taken as openly as possible and as closely as possible to the citizen. Preparatory legal texts are published. If full disclosure is not possible, parts are published. Translations are made prior to adoption in the Council. With ACTA, no drafts or translations are published. In a Resolution, the European Parliament called for disclosure of ACTA preparatory drafts, including progress reports, and of the Commission's negotiating mandate. The Council did not release documents.
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+ ACTA will not be published prior to adoption in the Council. Adding a legal
framework to a trade agreement circumvents the "Protocol on the role of the
national parliaments in the European Union"'s transparency requirements for
Community legislation. The Protocol stipulates that translations have to be
available 6 weeks prior to adoption by the Council.
In the case of trade agreements, both the EU Member States and the European Parliament have vetoes on aspects of the trade agreement. The following vetoes apply to ACTA:
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+ in the landmark ECJ judgment on the Turco case (joined cases C-39/05 P and
C-52/05 P), the Court stressed the importance of the public right of access
to the documents of the institutions, including preparatory ones, especially
in the case of legislative acts.
+ in so far as ACTA will relate to trade in cultural, audiovisual and educational services, the Member States have a veto,
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+ while ACTA is not a legislative act in the strict sense, it will be legally
binding for the member states. ACTA is therefore de facto legislation and
ACTA texts should be made directly accessible.
+ in so far as ACTA will relate to non commercial acts, the Member States have a veto,
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+ keeping the ACTA texts secret makes both properly assessing ACTA's
proportionality and subsidiarity issues, and political scrutiny, impossible.
+ the Member States have a veto on criminal measures in ACTA,
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+ the European Parliament has vetoes if ACTA entails amending an act adopted under the procedure referred to in Article 251 or if a specific institutional framework is established by instituting cooperation procedures,
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== Community Competence + furthermore, the Community is not competent to take disproportional measures.
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+ ACTA can not surpass present Community legislation. (TEC 133.3) ACTA's secrecy makes it impossible to assess whether the vetoes apply and should be used. In order to safeguard transparency and parliamentary legislative power, we call upon the parliaments of Europe, both the national as the European Parliament, to set parliamentary scrutiny reservations. If ACTA's final draft indeed combines a too broad definition of piracy with harsh measures, we call upon the parliaments to exercise vetoes against ACTA.
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+ ACTA will relate to trade in cultural and audiovisual services and
educational services. This falls within the shared competence of the
Community and its Member States. (TEC 133.6)

+ the intention expressed in a leaked discussion paper to address
non-commercial acts by civilians does not fall within TITLE IX Common
Commercial Policy. The Community is not competent. And even if it would fall
within TITLE IX, it does not fall within "commercial aspects of intellectual
property" (TEC 133.5). Therefore, unanimity in the Council is needed and
Parliament has to be consulted (TEC 133.7)

+ if a specific institutional framework is established by instituting
cooperation procedures, assent of the European Parliament has to be obtained.
(TEC 300.3) The same is true if ACTA entails amending an act adopted under
the procedure referred to in Article 251.

+ ACTA cannot be concluded before the study on whether criminal measures are
essential, is ready, and the criminal measures proven essential. (TEC 133.6,
ECJ C-176/03) [study]

For more competence issues, we would like to refer you to the FFII analysis.
[analysis]
Yours sincerely,

(no wiki markup)

We call upon the Parliaments of Europe to set parliamentary scrutiny reservations on the Anti-Counterfeiting Trade Agreement (ACTA). It may be the only way to stop silent adoption in the Council.

Behind closed doors, the EU, US, Japan and other countries are negotiating ACTA. No drafts are published. Leaked documents show the negotiating parties use a very broad definition of piracy. In an obfuscated way, the definition comes down to "willful, large scale infringements". As a result, bona fide entrepreneurs and civilians are criminalized, and excessive civil and administrative measures can be invoked against them. The following examples may fall under ACTA:

+ a newspaper, whistle blower or weblog author revealing a document,

+ ambiguous cases of trademark confusion,

+ parallel importation (buying and selling of genuine products),

+ making a product or medicine (in many sectors, there are so many patents, with unclear scope and validity, it is impossible to tell whether one violates a patent),

+ the production of spare parts (may violate an unexamined design right, with unclear scope and validity),

+ an office worker emailing a copy of a market research report to his colleague at work,

+ emailing a list of people (may violate an unexamined database right, with unclear scope and validity),

+ a library, in order to preserve digital sound recordings for posterity, unlawfully breaking the technical protection measure wrapping the digital recording each time it lawfully receives a sound recording either by purchase or by legal deposit,

+ youngsters enthusiastically sharing their favorite music with friends.

In all these cases, the rights holder can go to a civil court for damages. But harsh anti-piracy measures, meant to fight criminal organizations, are excessive. A too broad definition may have far reaching consequences on legal certainty, innovation, competitiveness, freedom of speech, privacy and access to medicines, software and the Internet. ACTA could become a dangerous tool for abusive strategies.

It is essential the public and parliaments can scrutinize ACTA. It is unclear whether they will be able to do that. It is unclear whether the final draft will be published prior to Political Agreement in the EU Council. ACTA may pass silently during Parliamentary recess.

In the EU decisions are normally taken as openly as possible and as closely as possible to the citizen. Preparatory legal texts are published. If full disclosure is not possible, parts are published. Translations are made prior to adoption in the Council. With ACTA, no drafts or translations are published. In a Resolution, the European Parliament called for disclosure of ACTA preparatory drafts, including progress reports, and of the Commission's negotiating mandate. The Council did not release documents.

In the case of trade agreements, both the EU Member States and the European Parliament have vetoes on aspects of the trade agreement. The following vetoes apply to ACTA:

+ in so far as ACTA will relate to trade in cultural, audiovisual and educational services, the Member States have a veto,

+ in so far as ACTA will relate to non commercial acts, the Member States have a veto,

+ the Member States have a veto on criminal measures in ACTA,

+ the European Parliament has vetoes if ACTA entails amending an act adopted under the procedure referred to in Article 251 or if a specific institutional framework is established by instituting cooperation procedures,

+ furthermore, the Community is not competent to take disproportional measures.

ACTA's secrecy makes it impossible to assess whether the vetoes apply and should be used. In order to safeguard transparency and parliamentary legislative power, we call upon the parliaments of Europe, both the national as the European Parliament, to set parliamentary scrutiny reservations. If ACTA's final draft indeed combines a too broad definition of piracy with harsh measures, we call upon the parliaments to exercise vetoes against ACTA.

Yours sincerely,

acta letter (last edited 2009-05-30 23:30:38 by localhost)