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Europaudvalget 2011-12
EUU Alm.del Bilag 42
Offentligt

-----Oprindelig meddelelse-----

Fra: Ante Wessels [mailto:[email protected]]

Sendt: 14. oktober 2011 10:33

Til: Signe Riis Andersen

Emne: FFII urges EP Civil Liberties Committee to formulate opinion on

ACTA

Dear Members of Cosac, Dear Permanent Representatives,

Please find below an FFII letter to the European Parliament Civil

Liberties

Committee.

Yours sincerely,

Ante Wessels

Dear Members of the Civil Liberties Committee,

In the coming months, the Parliament will have to take a decision on

whether to

give consent to ACTA (Anti-Counterfeiting Trade Agreement). Research has

shown

serious fundamental rights issues. We call upon you to formulate an

opinion on

ACTA.

A group of prominent European academics published an opinion on ACTA.

They conclude

that certain ACTA provisions are not entirely compatible with EU law and

will

directly or indirectly require additional action on the EU level. They

invite "the

European institutions, in particular the European Parliament, and the

national

legislators and governments, to carefully consider the above mentioned

points and,

as long as significant deviations from the EU acquis or serious concerns

fundamental rights, data protection, and a fair balance of interests are

not

properly addressed, to withhold consent." [1]

An INTA Committee commissioned study acknowledges deviations from EU law.

The study

concludes: "There does not therefore appear to be any immediate benefit

from ACTA

for EU citizens". [2]

The Greens / EFA group commissioned two studies, on ACTA and Access to

Medicines

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[3] and on the compatibility of ACTA with the European Convention on

Human Rights &

the EU Charter of Fundamental Rights [4]. The second study was written by

Professor

Douwe Korff, London Metropolitan University, and Ian Brown, Senior

Research Fellow,

Oxford Internet Institute, University of Oxford, both fundamental rights

experts.

In their opinion, ACTA is incompatible with fundamental European human

rights

instruments and standards. Below we attach the Summary & conclusions of

this study.

If after careful considerations doubts still exist, we believe Parliament

should

ask the European Court of Justice an opinion on the delicate issue of

ACTA's

compatibility with fundamental European human rights instruments and

standards.

Only the Court may decisively resolve the uncertainties.

Yours sincerely,

Ante Wessels

Foundation for a Free Information Infrastructure

Attachment

SUMMARY & CONCLUSIONS

ACTA was negotiated in unwarranted secrecy, without adequate input from

civil

society or parliamentarians, but in close cooperation with major IP right

holders.

Not surprisingly, this resulted in a text that gives disproportionate

protection to

big business; fails to level the playing field between developed and

developing

nations in international trade relations; hampers innovation (especially

by SMEs);

fails to promote grassroots culture; and could impede the dissemination

knowledge for people across the world (and access to health care and

generic

medicines).

Human rights were effective ignored, apart from the inclusion in the

Agreement of

vague and ineffective without prejudice clauses that fail to redress

the balance,

and are little more than fig-leaves. The inclusion of a detailed

provision on the

need to respect human rights in the protection of IPR, on the lines of

the 138

Amendment to Directive 2002/21/EC, was rejected as not needed .

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This was wrong. Our analysis shows that ACTA, as currently drafted,

seriously

threatens fundamental rights in the EU and in other countries, at various

levels.

Specifically:

THE RIGHT TO FREEDOM OF EXPRESSION AND INFORMATION:

Re Application of ACTA to trivial or small-scale, not-for-profit

technical

infringements of IP rights, and to the dissemination of IP-protected

information

without the agreement of the right holder where this is justified on

higher public

interest grounds:

Article 23 ACTA requires State parties to lower the criminal threshold

for IPR

infringements, and to widen the scope of the criminal offences, without a

minimis exception;

Without such an exception and/or similar exceptions on the lines of the

U.S. fair

use and fair comment rules, IPR enforcement will disproportionately

restrict the

freedom to seek, receive and impart information and ideas;

Since a de minimis exception can be seen as a limitation on procedural

matters

rather than on the substance of IP rights, this is not remedied by the

fact that

ACTA allows States to retain substantive exceptions to IP law;

In our opinion, an explicit de minimis rule and an explicit public

interest defence

are the minimum that are required to bring Article 23 in accordance with

the

European Convention on Human Rights (ECHR) and the EU Charter of

Fundamental Rights

(CFR).

Re Application of ACTA to evasion of Digital Rights Management systems:

ACTA too easily assumes that right holders rights always trump user

rights, that

right holders can impose whatever kinds of DRM restrictions they like,

and that

these are always lawful in terms of contract- and consumer law, no matter

how

draconian.

In our opinion, in specific contexts, this will not be right, and this

approach

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therefore unduly and disproportionally restricts access to information,

or the free

dissemination of information, in violation of Article 10 ECHR and Article

11 CFR.

Three strikes

and extended ISP liability:

the revised, final text of Article 27.1

3. ACTA no longer requires

States to

adopt the kind of draconian measures

excessive ISP liability, three

strike

rules, etc.

that were clearly originally in the minds of the drafters,

and that

the European Data Protection Superviser (EDPS) has shown to be clearly

incompatible

with European human rights and data protection law;

However, it still suffers from some of the same defects as the criminal

enforcement provision mentioned above. Article 27 is still excessively

vague; it

encourages non-EU States to adopt such human rights-unfriendly measures

in support

of mainly U.S. and EU corporations, who could not rely on such measures

in their

own regions; and it could still be misread or misconstrued by EU States

to adopt

such measures.

In our opinion, without clear stipulations that require States that sign

up to the

Agreement not to allow private-sector-imposed three strike rules and

not to

impose excessive ISP liability in respect of IPR infringements, ACTA

fails to

ensure that it will be applied (by EU and non-EU States) in accordance

with

European and international human rights standards.

THE RIGHT TO PROTECTION OF PERSONAL DATA:

Articles 11 and 27(4) allow for the following:

the surreptitious monitoring of the Internet use of millions of

individuals without

any concrete suspicion of illegality, and the systematic recording and

analyses of

information on their Internet use;

the disclosure of the information gleaned from such surveillance to right

holders,

even though it may be wildly unreliable as an indicator of illegality,

without any

real safeguards to ensure that only information is disclosed which

seriously

suggests widespread infringement by identified individuals;

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on the basis of completely unclear standards (essentially, mere claims by

right

holders);

by judicial and other authorities, i.e. also by authorities that are

neither

independent nor impartial in these respects;

across borders, including from EU Member States with strict data

protection laws to

non-EU Member States with inadequate data protection laws (or no data

protection

laws at all) ; and

in proceedings to which the individuals do not have access, and in which

they are

not heard (inaudita altera parte).

The above-mentioned suspicionless monitoring and disclosures of

unreliable but

sensitive personal data are incompatible with European human rights and

data

protection law, except under very stringent conditions, as outlined in

our Opinion

with reference to the Opinion of the EDPS, which include:

limiting such monitoring to clear cases of major IPR infringements ,

and even

then only subject to a prior check by the relevant national data

protection

authority;

limiting transborder disclosures to right holders and law enforcement

agencies in

non-EU countries that ensure adequate protection of the received data,

but in

either case again only subject to such a prior check ;

imposing serious checks on the validity of non-EU personal data

disclosure orders,

and on assurances of limiting the use of the data by the non-EU recipient

to the

purpose of the disclosure (which is not properly ensured by ACTA, in

spite of

phrases suggesting this).

In our opinion, the absence of such stringent conditions in ACTA means

that the

Agreement in these respects is incompatible with the ECHR, the CFR, and

European

data protection rules.

FAIR TRIAL/DUE PROCESS ISSUES RELATED TO OTHER FUNDAMENTAL RIGHTS:

Re Criminal law enforcement of IPR under ACTA:

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In our opinion, ACTA, by not including a de minimis exception to its

compulsory and

draconian enforcement regime, fails to ensure adequate protection of the

right to

freedom to obtain and disseminate information, the right to freedom from

unreasonable search and arrest, the right to inviolability of the home,

and the

right to the peaceful enjoyment of one s possessions, and thus violates

those

rights.

Re Civil-law enforcement of IPR under ACTA (including injunctions,

provisional

measures, and the awarding of damages):

In our opinion, without clear provisions stressing that injunctions

should be the

exception, and inaudita proceedings the high exception, and that for

both, there

must be strong counterbalancing safeguards to preserve the equality of

arms in

IPR enforcement proceedings, ACTA is incompatible with the fair trial

guarantees

in the ECHR and the CFR.

Privatisation

of IPR law under ACTA

Rather than contributing to the upholding of freedom of expression and

due process

rights by the dominant, private-sector players on the Internet, ACTA

erodes the

development of the Rule of Law in that realm. It encourages the

regulation of human

rights-sensitive matters by private entities, outside the formal

frameworks, and

without ensuring compliance with off-line human rights standards.

This privatisation of the IPR regime therefore, in effect, deprives

individuals

from their right to have crucial issues of Internet freedom properly

adjudicated in

proceedings that meet all the requirements of Article 6 ECHR/Article 47

CFR.

Overall, ACTA tilts the balance of IPR protection manifestly unfairly

towards one

group of beneficiaries of the right to property, IP right holders, and

unfairly

against others. It equally disproportionately interferes with a range of

other

fundamental rights, and provides or allows for the determination of such

rights in

procedures that fail to allow for the taking into account of the

different,

competing interests, but rather, stack all the weight at one end.

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This makes the entire Agreement, in our opinion, incompatible with

fundamental

European human rights instruments and -standards.

Douwe Korff

Cambridge/London

8 October 2011

(The study is issued under a CC-BY-SA License)

[1] Opinion European Academics on ACTA:

http://www.iri.uni-hannover.de/acta-1668.html

[2] EP INTA study

http://acta.ffii.org/?p=681

[3] ACTA and Access to Medicines

http://rfc.act-on-acta.eu/access-to-medicine

[4] Opinion on the compatibility of ACTA with the European Convention on

Human

Rights & the EU Charter of Fundamental Rights

http://rfc.act-on-acta.eu/fundamental-rights

Ian Brown

Oxford