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Deutsch: ENDitorial: Mobilisierung um ACTA zu stoppen
The negotiating partners of ACTA have announced that the next round of negotiations on ACTA will take place in Mexico in January and have promised to conclude the agreement in 2010. As the last edition of the EDRi-gram exposed, the Internet Provisions of ACTA lay down a global foundation for riposte graduée, a global DMCA, and increased authority for border guards to implement an information customs regime. This global secret copyright treaty seems unstoppable, but it stands on some fragile footing.
Not everyone was taken by surprise. The Foundation for a Free Information Infrastructure (FFII) and especially Ante Wessels, has been working on a sharp and thorough analysis of ACTA for quite a long time that sets forth the issues of concern and points out the weak spots in ACTA's armor. La Quadrature du Net also has set up a web dossier on ACTA, the OpenNet Coalition behind the Blackout Europe campaign has been getting prepared, and the Werebuild.eu project wiki has an ACTA page.
The European Parliament has already spoken clearly in the Susta Report last year on the expectations for transparency to European citizens, the limitations of the Commission's competence on the criminal provisions, the protection of privacy, and other public interest concerns about this closed door pact of global impact.
And this time, artists have come out to show their support for the Open Internet and not be used as pawns in the entertainment industry's attempts to rig an international regime to preserve their business models. The Free Culture Forum has released their Charter for Innovation and Access to Knowledge. The Trans-Atlantic Consumer Dialogue recently concluded the second round of the Paris Accord, negotiating an agreement between consumers and artists.
Now, Christian Engström, Member of European Parliament (Pirate Party) has invited the Internet community to help him shape a question on ACTA and the Telecom Package, to which the European Commission and Council are obliged to respond. Below are some brief thoughts intended to engage a fuller discussion on four areas of intersection between ACTA and the Citizen's Rights Amendment (138) of the Telecom Package: (1) Judicial obligations; (2) Privacy; (3) Fundamental Rights; and (4) EU Competence.
First, in regards to obligations for adjudication and enforcement on the members states, it was a long and hard fought battle over the essence of Amendment 138 as requiring a prior judicial ruling before termination of Internet access. Conveniently prepared just weeks before the final Conciliation, the legal services of the European Parliament issued an opinion that the EU's meddling in such civil and criminal procedures is outside the competence of the EU. Well, now it turns out that ACTA not only wants to increase the ex officio authority of border guards, it also delves quite specifically into changes in the remedial powers of the court, including the calculation of damages, the mandatory availability of injunctions, the scope of criminal sanctions, and rules regarding search and seizure. Does the hurried legal memo apply for this vast overreach on shaping global norms as well? The European Parliament should inquire as to the changes ACTA may require of Members States regarding their civil and criminal procedure.
Second, ACTA can only be agreed upon by the negotiating partners if it does not require a change in their own laws. As the Director of the Mexican IP Office who will be hosting the next ACTA negotiations has declared that they are "not going to negotiate something that is outside of our legislation, which goes against the constitution, laws or the criminal code." There are of course differences between the diverse countries taking part in the negotiations of ACTA. A significant difference in legal framework is in regards to privacy, especially between the US and EU. The final Amendment 138 text emphasized the increased standard of the privacy right and the presumption of innocence, so that their priority is preserved in the balancing of interests when in conflict with IP enforcement, for example. The European Parliament must make sure the general public is aware of the potential privacy implications of ACTA well before it is concluded.
Third, it is important to remember that the fundamental rights and freedoms ACTA impacts is not only in regards to the Internet, but is also harmful to the global Access to Medicines. The Dutch drug seizure scandal should of life-saving treatments that were in transit from India to Brazil confiscated for patent infringement even though they were not under patent at neither the origin nor destination of shipment. The leaked copies of the ACTA text contain "in-transit" provisions that would give pharmaceutical companies the power to control the distribution of generic versions of essential medicines. (These "in-transit" provisions would also then presumably mean that an electronics product that contains hardware or software under patent in one country but not another could also be seized.) The European Parliament should clarify how ACTA will impact the distribution of medicines and textbooks, and the impact on accessibility and the availability of library information across borders.
Finally, in regards to EU competence, it is a great stretch for the Article 133 Committee of the European Commission DG Trade to claim proper competence for the sweeping changes proposed in the ACTA on a broad range of policy issues. As the FFII analysis and the Ombudsman complaints reveal, ACTA goes beyond the acquis communitaire in several important areas. The criminal provisions of ACTA in particular clearly lie outside its competence, which is why a couple representatives from the Council were reportedly invited to previous negotiations to satisfy the need for a common accord with the European Members States, despite the requirement for unanimity in European Council. And as EDRi's Joe McNamee reminded us, the European Commission is opening up the issues of third-party liability in the Internet Provisions even though Parliament expressly declared that it shouldn't. The European Parliament should ask for clarification on how it is justified that those questions which are at the forefront of the controversies and debates over digital rights and access to knowledge, which are now in the midst of the legislative process, can be decided behind closed doors for the world, without public input and democratic participation.
EDRi-gram: ENDitorial: ACTA revealed, European ISPs might have a big problem
FFII: ACTA analysis
La Quadrature: Acta
We Re-Build: ACTA
Free culture forum: Charter for Innovation, Creativity and Access to
The Paris Accord Round II (23-24.10.2009)
Question on ACTA and the Telecoms Package (15.11.2009)
Report on the impact of counterfeiting on international(8.11.2008)
Interview with Jorge Amigo, Director of IMPI about #ACTA (13.11.2009)
HAI Statement - Release of generic ARV medicines by Dutch Customs
Trade Talks Hone in on Internet Abuse and ISP Liability (3.11.2009)
(Contribution by Eddan Katz - EDRi-member Electronic Frontier Foundation - USA)