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| Dear ..., | 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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| We write to express our concerns about the Anti-Counterfeiting Trade Agreement (ACTA) under negotiation. ACTA will contain a new international benchmark for legal frameworks on so called "intellectual property" rights (IPR) enforcement. While ACTA takes the form of a trade agreement, it is de facto legislation. Being a trade agreement, ACTA circumvents Community transparency and democratic safeguards regarding legislation. |
Behind closed doors, the EU, US, Japan and other countries are negotiating ACTA. No drafts are published. The negotiating parties use a too 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 be infringements. If they are, they would fall within the definition: |
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| ACTA will only be made public once all parties have already agreed to it. None of the EU's national parliaments nor the European Parliament will be able to scrutinize its contents in any meaningful way. ACTA constitutes a loss of parliamentary legislative power. |
+ a newspaper, whistle blower or weblogger revealing a document, |
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| On the other hand, in the case of trade agreements, both the national parliaments and the European Parliament have vetoes on aspects of the trade agreement. Taking an active role, parliaments can restore some of their legislative power. Unfortunately, parliaments seem unaware of the vetoes, the power, they have. |
+ ambiguous cases of trademark confusion, |
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| We call upon you to take an active role, to set parliamentary scrutiny reservations, in order to safeguard transparency and parliamentary legislative power. We will show ACTA is important enough, deserves an active role. |
+ parallel importation (buying and selling of genuine products), |
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| + 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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| == Introduction on ACTA | + the production of spare parts (may violate an unexamined design right, with unclear scope and validity), |
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| + an office worker emailing a copy of a market research report to his colleague at work, | |
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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". In the U.S., ACTA is treated as an Executive Agreement, meaning that it will not go through the US Congress for approval. |
+ emailing a list of people (may violate an unexamined database right, with unclear scope and validity), |
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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] |
+ 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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| In September, 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] Leaked documents and industry comments fuel concerns that the treaty may give patent trolls the means to extort companies, undermine access to low-cost generic medicines, lead to monitoring all citizens' Internet communications, interfere with fair use of copyrighted materials and criminalize peer-to-peer electronic file sharing. |
+ and possibly: youngsters enthusiastically sharing their favorite music with friends. |
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| A document released by the Canadian government has confirmed that many topics mentioned above are indeed part of the negotiations. | 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. |
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| 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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| == Stealth legislation | 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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| In the case of trade agreements, both the EU Member States and the European Parliament have vetoes on aspects of the trade agreement. ACTA's secrecy makes it impossible to assess whether the vetoes apply and should be used. | |
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| ACTA will not be published prior to adoption in the Council. The Council both denies the right of access to Community documents (art 255 TEC); and the right to translations the national parliaments have under the "Protocol on the role of the national parliaments in the European Union". The Protocol stipulates that translations have to be available 6 weeks prior to adoption by the Council. |
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. |
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| The Community acquis on "IPR" enforcement was developed in a transparent and democratic way. Both the national parliaments and the European Parliament were involved. As regards to international "intellectual property" agreements, they have traditionally been conducted in a more open and transparent manner. ACTA sets a precedent of stealth legislation. |
If ACTA's final draft indeed combines a too broad definition of piracy with harsh measures, we call upon you to exercise vetoes against ACTA. 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: "Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinise all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights." |
+ 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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| ACTA's secrecy makes it impossible to assess whether the European Parliament's and the member states' vetoes apply and should be used. |
+ 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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| == Safeguarding parliamentary legislative power Without parliamentary scrutiny reservations, the Council can silently adopt ACTA. Parliaments can stop this silent process and enforce transparency by making scrutiny reservations. This will give room to scrutinise ACTA and competence issues: + 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. + Definitions have to be as clearly and narrowly as possible. + the European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of the Treaty. For details, we would like to refer you to the attachment. == Conclusion By taking an active role, parliaments can safeguard transparency and parliamentary legislative power. If parliaments do not take an active role, ACTA may turn out unbalanced and disproportional, setting a precedent of stealth legislation. |
+ furthermore, the Community is not competent to take disproportional measures. |
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== Attachment + 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. Consequently, the negotiation of ACTA shall require the common accord of the Member States as well. ACTA has to be concluded jointly by the Community and the Member States. (TEC 133.6) Alternatively, these services may be excluded from ACTA. + 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. + the Community did not adopt criminal measures yet in the field of "intellectual property" rights, unanimity in the Council is needed to add criminal measures to ACTA. (TEC 133.5) + 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] + the agreement has to be compatible with internal Community policies and rules. (TEC 133.3) To leave room to amend internal rules after assessment, an agreement has to be more conservative than adopted rules, e.g. IPRED 1. + Community action has to be proportional (TEC 5), it is essential to define the qualification characteristics of the elements of piracy as clearly and narrowly as possible. At the bare minimum, "infringing item", "commercial scale" and "intentional infringement" have to be clearly defined. Proportionality is more important in a trade agreement than in internal rules, since a trade agreement can not easily be changed and has no evaluation moments. + the Community can not impose criminal measures if the policy field is not harmonised. (TEC 133.6, ECJ C-176/03) ACTA can only go so far as policy fields are harmonised. + the Community can not impose precise sanctions. (TEC 133.6, ECJ C-176/03, ECJ C-440/05) Nor can ACTA. + national legal systems have their own general methods for dealing with recognized criminal offences like "attempting, aiding or abetting". The Community does not have the authority to harmonise these systems, not even after decision C-176/03. + the European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of the Treaty. (TEC 300.6) |
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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. The negotiating parties use a too 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 be infringements. If they are, they would fall within the definition:
+ a newspaper, whistle blower or weblogger 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,
+ and possibly: 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.
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. 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 you to exercise vetoes against ACTA. 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.
Yours sincerely,