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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. If, as currently planned, the agreement 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 have been able to scrutinize its contents in any meaningful way. 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. | 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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| Both the European Parliament and the national parliaments have vetoes on aspects of ACTA. ACTA's secrecy makes it impossible to assess whether these vetoes apply, to assess proportionality and subsidiarity issues, and makes political scrutiny impossible. ACTA sets a precedent of stealth legislation, constitutes a loss of parliamentary legislative power. | 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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| The Council refuses to release ACTA documents, both denying | + a newspaper, whistle blower or weblog author revealing a document, |
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| We call upon you to set parliamentary scrutiny reservations, in order to safeguard parliamentary legislative power. | + ambiguous cases of trademark confusion, |
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| == Introduction on ACTA | + parallel importation (buying and selling of genuine products), |
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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. |
+ 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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| 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] |
+ the production of spare parts (may violate an unexamined design right, with unclear scope and validity), |
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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: |
+ an office worker emailing a copy of a market research report to his colleague at work, |
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| + Require Internet Service Providers to monitor all citizens' Internet communications; |
+ emailing a list of people (may violate an unexamined database right, with unclear scope and validity), |
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| + Interfere with fair use of copyrighted materials; | + 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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| + Criminalize peer-to-peer electronic file sharing; and | + youngsters enthusiastically sharing their favorite music with friends. |
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| + Undermine access to low-cost generic medicines. | 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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| We share these concerns and support the call for 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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| 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. The following vetoes apply to ACTA: | |
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| + 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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| + in so far as ACTA will relate to non commercial acts, the Member States have a veto, | |
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| + 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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| + furthermore, the Community is not competent to take disproportional measures. | |
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| 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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A rollback of democracy is not needed nor acceptable. 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. == Introduction on ACTA == Transparency 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. + 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 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. + 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. + keeping the ACTA texts secret makes both properly assessing ACTA's proportionality and subsidiarity issues, and political scrutiny, impossible. == Community Competence + 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,