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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. | |
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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: |
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| Behind closed doors, the EU, US, Japan and other countries are negotiating ACTA. No drafts are published. Leaked documents show ACTA will not only target criminal piracy and counterfeiting, but will criminalize plain infringements of copyright and trade mark rights. The drafts also contain very harsh civil measures against plain infringements of so called intellectual property rights. This approach is biased. Copyright, trade mark rights, patents and other rights ban competition. The scope of such rights is often unclear, bona fide infringements occur daily. Whether an act is an infringement or fair competition has to be established in a civil trial. By putting maximum pressure on acts that may still be fair competition, trolls get free reign and companies are chased of the market. This will stifle innovation and competitiveness, limit access to software and medicines. | + a newspaper, whistle blower or weblogger revealing a document, |
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| Media companies may like to chase every kid on the block that shares a music or movie fragment. But this approach crimininalizes journalists that reveal a document as well. ACTA needs scrutiny by all stakeholders, experts and parliaments. | + ambiguous cases of trademark confusion, |
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| It is still unclear whether Parliaments will be able to scrutinize ACTA. 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. | + parallel importation (buying and selling of genuine products), |
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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, Parliaments and public get nothing. 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. | + 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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| 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. | + the production of spare parts (may violate an unexamined design right, with unclear scope and validity), |
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| 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. | + an office worker emailing a copy of a market research report to his colleague at work, |
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| + emailing a list of people (may violate an unexamined database right, with unclear scope and validity), | |
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| = Vetoes | + 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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| The following vetoes apply to ACTA: | + and possibly: youngsters enthusiastically sharing their favorite music with friends. |
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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. | 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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| + In so far as ACTA will relate to non commercial acts, the Member States have a veto. | 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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| + The Member States have a veto on criminal measures in ACTA. | 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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| + 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. | 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. 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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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. 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,