ACTA Update XII

As I reported in my last post, the European Parliament's INTA committee recommended that ACTA be voted on in the European Parliament. And the good news continues with the release of the draft report of the Industry, Research and Energy committee...

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As I reported in my last post, the European Parliament's INTA committee recommended that ACTA be voted on in the European Parliament. And the good news continues with the release of the draft report of the Industry, Research and Energy committee (ITRE), which is short but rather sweet [.pdf].

It makes four absolutely spot-on and withering comments on ACTA.

First:

Notes that counterfeiting, copyright and trademark infringements are covered by ACTA thus creating a one-size-fits-all instrument of enforcement which doesn't meet the unique needs of each sector; is concerned by the lack of definition of key terminologies on which the ACTA enforcement mechanisms are based; fears that this creates legal uncertainty for European companies and in particular SMEs, technology users, online platform and internet service providers;

This is a point that I have made many times here on Computerworld UK. ACTA began as a treaty against conventional, analogue counterfeits, but had digital infringement shoe-horned into it. The result is an incompatible, inappropriate mess. If the European Union wants to tackle counterfeiting and digital infringement, it should do so with a separate treaties that are specifically designed to deal with each area and its particular characteristics. Trying to come up with a portmanteau treaty simply guarantees that we get the worst of both worlds.

The ITRE committee is also right to highlight the dangerous lack of definition of certain key phrases in ACTA. Indeed, there are some phrases that have been introduced that simply don't exist anywhere else in treaties. Here, for example, is one that Amnesty International noticed:

Amnesty International is also gravely concerned about the ACTA's vague and meaningless safeguards. Instead of using well-defined and accepted terminology, the text refers to concepts such as "fundamental principles" and even invents a concept of "fair process", which currently has no definition in international law.

"Worryingly, ACTA's text does not even contain references to safeguards like ‘fundamental rights', ‘fair use', or ‘due process', which are universally understood and clearly defined in international law," said Widney Brown.

This is another of ACTA's tricks: it uses words that sound deceptively reassuring, like "fair process", but which are literally meaningless in the context of international treaties, since they have never been defined. It's part of the fundamental dishonesty of ACTA which pretends to be one thing, but in fact is something quite different.

The next section of the ITRE statement looks at the knock-on effect of ACTA:

Notes that while the ambition of ACTA is to strengthen EU industries, it appears to be contrary to the ambition of the EP in the Digital Agenda to make Europe the scene for cutting edge internet innovation, as well as the strong ambition to promote net neutrality and access to the online digital market for SMEs;

This is an aspect that is often overlooked. While politicians concentrate on the supposed damage of digital infringement – without, of course, ever providing impartial evidence to back up that claim – they blithely ignore the fact that ACTA will impose all kinds of extra burdens on Internet companies, one of the few flourishing areas of the European economy.

Moreover, that economy is hugely greater than the relatively small bloc of the recording, film and publishing industries – the main backers of ACTA's digital chapter. So on purely pragmatic, economic grounds, it makes no sense to endanger the much larger and growing Internet industry in order to prop up outdated business models that the copyright companies wish to conserve.

The ITRE's report picks up on the issue of lack of evidence for ACTA's underlying rationale:

Recalls that data concerning the scale of IPR infringements are inconsistent, incomplete, insufficient and dispersed, and that an objective, independent impact assessment is needed for any additional legislative proposal;

Finally, it zeroes in on one of the areas where ACTA is most problematic:

Is concerned that the ACTA text does not ensure a fair balance between the right to intellectual property and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, the requirement of which
was recently ruled by the European Court of Justice;

That reference to the ECJ case is apposite. The judgment has only recently come through, and therefore represents the latest thinking of the court on the following important issue:

concerning [ISP] Netlog's obligation to introduce a system for filtering information stored on its platform in order to prevent files being made available which infringe copyright.

Here's what the court decided:

it must be held that, in adopting the injunction requiring the hosting service provider to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other (see, by analogy, Scarlet Extended, paragraph 53).

In the light of the foregoing, the answer to the question referred is that Directives 2000/31, 2001/29 and 2004/48, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against a hosting service provider which requires it to install the contested filtering system.

The crucial point made here is that "a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other" - a phrasing that the ITRE report quotes almost word for word.

After all those crushing points against ACTA, the ITRE committee's conclusion is inevitable:

Therefore, feels compelled to call on the Committee on International Trade to withhold its consent to the agreement.

But it goes further:

The Committee on Industry, Research and Energy calls on the Committee on International Trade, as the committee responsible, to propose that Parliament decline to give its consent.

That's pretty amazing, given the mood that prevailed just a few months ago, when it seemed inevitable that ACTA would simply sail through the European Parliament's committees, and hence the EP vote itself.

Against this background, the European Commission's press release on the referral (at last – it only took a month) of ACTA to the European Court of Justice is pretty pathetic:

EU Trade Commissioner Karel De Gucht stated, "I am very pleased that we are now one step closer to ensuring clarity on ACTA. As I said when I first proposed this action in late February, I believe the European Commission has a responsibility to provide our democratically elected parliamentary representatives and the public at large with the most detailed and accurate information available. Most of the criticism against ACTA expressed by people across Europe focused on the potential harm it could have on our fundamental rights. So, a referral will allow for Europe's top court to independently clarify the legality of this agreement."

First of all, we have the continuing insinuations that "detailed and accurate information" is not being made available by the critics of ACTA, and that somehow this is all one big misunderstanding, and that ACTA is actually a super little treaty if only the public could see the glorious truth that is being kept from them by those evil lying activists.

Secondly, it tries to pull off the clever trick of minimising the many other concerns about ACTA by focussing on " the potential harm it could have on our fundamental rights". Then, when the ECJ confirms that ACTA is not incompatible with the EU's laws (assuming for the moment that it does), the European Commission will be able to use a syllogism: The only problem with ACTA was that it might harm your fundamental rights; the ECJ says that ACTA is compatible with European laws; ergo, there is no problem with ACTA, and it should be passed immediately.

But that ignores two crucial facts. First, that there are many other deep problems with ACTA that the ECJ ruling will not touch upon at all – many of which I've discussed in previous updates. So even if the ECJ rules that there is no incompatibility, that doesn't mean ACTA is unproblematic.

The other major issue is that ACTA is a treaty, not a set of laws. It sets the context for what happens next by providing a floor for possible actions. In other words, it is part of the never-ending drive to make copyright enforcement harsher and more punitive. It is not about what it does today, but where it pushes signatories to go tomorrow. For that reason alone it is unacceptable, because it prevents democratically-elected institutions like the European Parliament from doing their job by making copyright legislation more balanced and fit for the digital age. ACTA is a straitjacket, and the European Parliament would indeed by crazy to put it on.

The European Commission's press release even has the audacity to repeat some of its earlier misleading claims. For example, it says:

As Europe is losing billions of Euros annually through counterfeit goods flooding our markets, protecting Intellectual Property Rights means protecting jobs in the EU. It also means consumer safety and secure products.

The EU's national customs authorities have registered that counterfeit goods entering the EU have tripled between 2005 and 2010.

Statistics published by the European Commission in July 2011 show a tremendous upward trend in the number of shipments suspected of violating IPR. Customs in 2010 registered around 80,000 cases, a figure that has almost doubled since 2009. More than 103 million fake products were detained at the EU external border

But as I've pointed out before, the Commission's own figures show that 95% of those counterfeit goods come from China, which is not a member of the ACTA club. Ratifying ACTA will have zero effect on what China's counterfeiters do, so those fake goods will keep on coming regardless.

Thus the Commission's attempt to scare people and politicians into accepting ACTA because it is supposedly needed to protect us from dangerous goods or from job losses is yet another dishonest attempt to ignore the facts of the situation: that passing ACTA will have no effect on these problems, which can and must be addressed using existing laws. The good news is that the European Parliament's committees have also seen through these tricks, and are now making it quite clear what must be done: voting out ACTA once and for all.

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