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| Dear ..., We write to express our concerns about the Anti-Counterfeiting Trade Agreement (ACTA) under negotiation. 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. |
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| == Introduction on ACTA | 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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| 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. |
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. 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. 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. 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 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. = Vetoes 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. == Stealth legislation It is still unclear whether ACTA will be published prior to political agreement in the Council. And if published, publication and political agreement may take place during Parliamentary recess. The Council both denies the right of access to Community documents (art 255 TEC / Regulation 1049/2001); 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. 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. ACTA's secrecy makes it impossible to assess whether the European Parliament's and the member states' vetoes apply and should be used. Yours sincerely, ---------- |
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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: |
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 fueled their concerns that the treaty may 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. A document released by the Canadian government has confirmed that many topics mentioned above are indeed part of the negotiations. |
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| + Require Internet Service Providers to monitor all citizens' Internet communications; + Interfere with fair use of copyrighted materials; + Criminalize peer-to-peer electronic file sharing; and + Undermine access to low-cost generic medicines. We share these concerns and support the call for transparency. == 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 can not surpass present Community legislation. (TEC 133.3) + 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] |
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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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 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.
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.
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.
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 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.
= Vetoes
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.
== Stealth legislation
It is still unclear whether ACTA will be published prior to political agreement in the Council. And if published, publication and political agreement may take place during Parliamentary recess. The Council both denies the right of access to Community documents (art 255 TEC / Regulation 1049/2001); 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.
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. ACTA's secrecy makes it impossible to assess whether the European Parliament's and the member states' vetoes apply and should be used.
Yours sincerely,
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]
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 fueled their concerns that the treaty may 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. A document released by the Canadian government has confirmed that many topics mentioned above are indeed part of the negotiations.
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.