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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. 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.