Difference between revisions of "ACTA: to keep in mind"

From La Quadrature du Net
Jump to navigationJump to search
(Arguments against an interim report)
(Arguments against waiting for EU Court of Justice opinion on ACTA)
 
(27 intermediate revisions by 4 users not shown)
Line 1: Line 1:
 
{{Infobox Version|en=ACTA:_to_keep_in_mind|fr=ACTA :_à_retenir|it=ACTA:_da_tenere_a_mente}}
 
{{Infobox Version|en=ACTA:_to_keep_in_mind|fr=ACTA :_à_retenir|it=ACTA:_da_tenere_a_mente}}
  
{{Introduction|This page lists key points to remember in any discussion about ACTA. It also provides information about the current procedure at the European Parliament.<br/>
+
<big>This page lists key points to remember in any discussion about ACTA</big>
To help us fight ACTA, visit our page [[How_to_act_against_ACTA|How to act against ACTA]].}}
+
 
 +
 
 +
{{ACTA how to act|lang=en}}
  
{{ACTA_how_to_act|lang=en}}
 
{{ACTA_to_know|lang=en}}
 
  
 
==Main arguments==
 
==Main arguments==
Line 13: Line 13:
 
*ACTA bypasses democracy and opens the door to a parallel legislative process, which the European MPs should be particularly angry about.
 
*ACTA bypasses democracy and opens the door to a parallel legislative process, which the European MPs should be particularly angry about.
  
===Arguments against an interim report===
+
==When calling the INTA committee==
In its strategy to delay the final vote on ACTA and defuse the debate, rapporteur David Martin is pushing for an "interim report". This is a bad initiative overlooking crucial political issues, which should be rejected:
+
The INTA's report is against ACTA. Ask the vote for the report in its actual state '''without [[INTA_ACTA_report_amendments|amendments]]'''.
  
* An interim report would be neutral in nature, and would prevent the Parliament from taking, in the near future, a strong political position against ACTA and recommend its rejection. Rule of procedure  [http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20120312+RULE-081+DOC+XML+V0//EN&language=EN&navigationBar=YES 81(3)] of the EU Parliament also specifies that an interim report's goal is to  achieve "''a positive outcome of the procedure''", which in this case means "the ratification of ACTA". This confirms the logic of Mr Martin's proposal: to buy time, defuse the debate, and try to save ACTA's fate.
+
===Arguments against ACTA's adoption===
* According to rule [http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20120312+RULE-081+DOC+XML+V0//EN&language=EN&navigationBar=YES 81(3)], the interim report is meant to propose "recommendation for modification or implementation". However, ACTA has been negotiated and signed. It cannot be modified.
 
* Mr. Martin [http://www.europarl.europa.eu/news/en/headlines/content/20120220FCS38611/4/html/ACTA-MEPs-want-clarity-before-taking-a-decision argues] that the interim report should question the Commission on ACTA's "implementation" (i.e how ACTA will be transposed into EU law). But the Commission's response will be non-binding, politically biased, and therefore close to meaningless. It has negotiated ACTA and has already [http://www.laquadrature.net/wiki/Counter-Arguments_Against_ACTA#.22ACTA_does_not_even_change_EU_law.22_and_.22provides_adequate_protections_for_fundamental_rights.22 argued] that "ACTA does not change EU law" (i.e does not require implementation measures). However, such interpretation is contradicted by a [http://www.laquadrature.net/wiki/Against_ACTA#EU_Parliament_INTA_study_-_July_2011_-_Calls_on_MEP_to_refuse_consent_to_ACTA study] commissioned by the "International Trade" committee and an [http://www.laquadrature.net/wiki/Against_ACTA#EU_IPR_Academics_-_February_2011_-_ACTA_goes_beyond_EU_law opinion] by leading scholars.
 
* An interim report focusing on implementation measures would overlook crucial political questions. Regardless whether ACTA will require direct implementation measures, it will for sure set a repressive policy-making trend in the field of copyright, patent and trademark, in the EU and worldwide. ACTA will also block any positive reform of today's dangerous and expansive copyright, patent and trademark law.
 
  
===Arguments against EU Court of Justice referral to the EU Parliament===
+
*'''ACTA will affect small and innovative market entrants'''
An ECJ referral by the Parliament – pushed by ACTA rapporteur David Martin – is useless at best and most likely harmful, for the following reasons:
 
* There is only one question that the Parliament can ask to the ECJ, the very same one that the Commission will ask in its own referral, as defined by the treaties (see [http://euwiki.org/TFEU#Article_218 art. 218.11] TFEU). It is narrow in scope, and legalistic in nature. It will fail to address ACTA's numerous [http://www.laquadrature.net/wiki/Counter-Arguments_Against_ACTA political problems]. The Parliament cannot simply ask any question it wants.
 
* The argument that the Parliament could detail the Commission's question with its own referral does not resist scrutiny: In any case, '''the Parliament will have an opportunity to send its written observations to the Court during the Commission's referral''' ([http://curia.europa.eu/jcms/jcms/P_76616/ rules of procedure] 107.1 of the ECJ, in pdf).
 
* If the Parliament decides to send its own referral, the consent vote will be postponed (see [http://euwiki.org/RoP#Rule_90 rule 90(6)] of EP RoP), and it will be easy for the minority of pro-ACTA MEPs to claim that no significant work should be undertaken on ACTA before the ECJ has answered.
 
  
===Learn more===
+
ACTA will have a chilling effect on innovation. By extending the scope of criminal sanctions for “aiding and abetting” to “infringement on a commercial scale”, ACTA will create legal tools threatening any Internet actor. Widespread social practices such as not-for-profit file-sharing between individuals, editing content on successful or popular news websites, or making accessible innovative tools of distribution, could be interpreted as “commercial scale”. Access, service or hosting providers, website editors will therefore suffer from massive legal uncertainty, making them vulnerable to litigation by the entertainment industries. This will force them to implement censorship measures harming the free Internet.
* You can learn more about ACTA and it's dangers to our freedom at http://lqdn.fr/acta
+
<br/>
 +
[http://www.edri.org/ACTAfactsheet#criminal|EDRi's analysis of ACTA's “criminal sanctions” chapter]
 +
<br/>
 +
*'''ACTA will lead to extra-judicial censorship measures'''
  
* You should also read our [[Counter-Arguments_Against_ACTA|counter-arguments]] to the Commission's disinformation about ACTA, it answers most arguments that you might encounter by those defending ACTA.
+
If ACTA is adopted, it will be possible for the entertainment industry to exert pressure on every Internet actor under the threat of criminal sanctions for “aiding and abetting” infringements (art.23.4) and under the guise of “cooperation” between both parties (art.27.3). ACTA also mentions “expeditious measures to deter further infringements” (art.27.1). Under this legal framework, Internet actors will be gradually compelled to deploy automated blocking, filtering of communications and deletion of online content. Such measures will inevitably restrict users' freedoms online.
 +
<br/>
 +
[http://www.laquadrature.net/en/acta-updated-analysis-of-the-final-version|Detailed analysis of ACTA's digital chapter]
  
* You can also read [http://www.laquadrature.net/en/acta-updated-analysis-of-the-final-version la Quadrature's analysis of ACTA's final version] and see an [[Against_ACTA|overview of criticisms against ACTA]].
+
*'''ACTA makes no distinction between for-profit and not-for-profit infringements'''
  
* EDRi has also done a series of fact-sheets about specific aspects of ACTA: http://www.edri.org/ACTA_Week
+
ACTA modifies the scope of criminal sanctions in EU Member States, ensuring they will be applied for cases of infringement on a “commercial scale”, defined as inducing “direct or indirect economic or commercial advantage” (art. 23.1). This term is vague, open to interpretation, and just plainly wrong when it comes to determining the scope of proportionate enforcement, as it does not make any distinction between commercial and non-profit infringement.
 +
<br/>
 +
[http://www.laquadrature.net/en/acta-updated-analysis-of-the-final-version#footnote10_fg5m2j4|Article 23.10 of ACTA]
 +
<br/>
 +
<!-- ===Arguments against an interim report===
 +
The interim report would not bring useful information to the debate :
  
The following resources are also helpful in better understanding ACTA:
+
*According to rule [http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20120312+RULE-081+DOC+XML+V0//EN&language=EN&navigationBar=YES 81(3)], the interim report is meant to achieve “a positive outcome of the procedure”, which in this case means the ratification of ACTA. It is also meant to include “recommendations for modification or implementation”. However, ACTA has already been negotiated and signed. It cannot be modified.
*[http://rfc.act-on-acta.eu/fundamental-rights Impact assessment of ACTA on fundamental rights]
+
*Rapporteur Martin wants the interim report to question the Commission regarding ACTA's “implementation”. But the Commission's response will be non-binding, politically biased, and therefore close to meaningless. The Commission negotiated ACTA and has already argued that “ACTA does not change EU law” (i.e. does not require implementation measures). Such interpretation is contradicted by a study commissioned by the INTA committee and a legal opinion by leading scholars.
*[http://rfc.act-on-acta.eu/access-to-medicines Study on ACTA and access to medicine]
+
-->
*[http://action.ffii.org/acta/Analysis FFII's analysis of ACTA]
+
===Arguments against waiting for EU Court of Justice opinion on ACTA===
 +
Delaying the consent procedure of the EU Parliament by waiting for the ECJ opinion would center the debate on legal issues, and the EP would be perceived as escaping its political responsibility.
 +
* 4 EU Parliament committees have [http://www.laquadrature.net/en/important-victories-on-acta-moving-on-to-final-steps urged] for the rejection of ACTA, undergoing a thorough political assessment that is enough to justify the rejection of ACTA. The lead committee, on "International Trade", also [http://www.laquadrature.net/en/major-victory-now-lets-win-actas-final-round recommended] the whole Parliament to reject ACTA.
 +
* By contrast, the ECJ opinion will be legalistic in nature, leaving out important political issues (see [http://euwiki.org/TFEU#Article_218 art. 218.11] TFEU). In particular, the opinion will probably not look at the crucial fact that ACTA would set in stone today's contentious policies (an impact study is still expected on EUCD and IPRED). It would block any possibility for the EU and national lawmakers to propose positive reforms in this field.
 +
<!--
 +
*There is only one question that the EP can ask to the ECJ, as defined by the treaties (see [http://euwiki.org/TFEU#Article_218 art. 218.11] TFEU): the very same one that the Commission will ask in its own referral. It is narrow in scope, legalistic in nature, and leaves out important political issues. Moreover, the Parliament will have an opportunity to send its written observations to the Court ([http://curia.europa.eu/jcms/jcms/P_76616/ rules of procedure] 107.1 of the ECJ, in pdf) during the Commission's referral.
 +
*If the Parliament decided to send its own referral, the consent vote would be postponed (see [http://euwiki.org/RoP#Rule_90 rule 90(6)] of EP RoP). No significant work would be undertaken before the ECJ has answered, effectively freezing the debate.
 +
===Both initiatives leave out the crucial political questions raised by ACTA===
 +
An interim report and an ECJ referral would center the debate on legal issues. Through these initiatives, the EP would be perceived as escaping its political responsibility:
 +
*MEPs must recognize that ACTA is a vaguely worded agreement, circumventing democratic procedures to push a repressive trend in the field of copyright, patent and trademark.
 +
*ACTA would set in stone today's contentious policies (an impact study is still expected on EUCD and IPRED). It would block any possibility for the EU and national lawmakers to propose positive reforms in this field.
  
==ACTA Procedure in the European Parliament==
+
Main arguments against a Parliamentarian referral to the ECJ and an interim report: [[File:20120323_ACTA_EC_Referral_Interim_Report.pdf]]
Most countries negotiating ACTA have already signed it, as well as most EU Member States.<br/>
+
-->
  
'''But ACTA still needs to be presented to the European Parliament (EP) and if the European Parliament votes NO to ACTA and rejects it, this will deal a likely fatal blow to the agreement'''.[[File:Acta-lqdn-250.jpg|right|ACTA handcuffed world]]
+
==The procedure in the European Parliament==
 +
For detailed information about the ACTA procedure in the European system, please see this page '''[[ACTA: Procedure in the European Parliament]]'''.
  
Before ACTA goes to vote before the whole of the European Parliament, several EP committees will be giving their opinion on the text, guiding the EP's final stance on ACTA.<br/>
+
==How to act?==
 +
To help us fight ACTA, visit our page '''[[How_to_act_against_ACTA|How to act against ACTA]]'''.
  
This is why as citizens '''we must [[How_to_act_against_ACTA|contact]] members of these committees to make sure they hear all about what is wrong with ACTA'''.
+
==Learn more==
 +
* You can learn more about ACTA and it's dangers to our freedom at http://www.laquadrature.net/en/ACTA
  
The International Trade [https://memopol.lqdn.fr/europe/parliament/committee/INTA INTA] Committee of the European Parliament is the main committee working on ACTA.
+
* You should also read our [[Counter-Arguments_Against_ACTA|counter-arguments]] to the Commission's disinformation about ACTA, it answers most arguments that you might encounter by those defending ACTA.
  
The Industry ([https://memopol.lqdn.fr/europe/parliament/committee/ITRE/ ITRE]), Civil Liberties ([https://memopol.lqdn.fr/europe/parliament/committee/LIBE/ LIBE]), Legal Affairs ([https://memopol.lqdn.fr/europe/parliament/committee/JURI JURI]), and Development ([https://memopol.lqdn.fr/europe/parliament/committee/DEVE/ DEVE]) committees are also working on ACTA.  
+
* You can also read [http://www.laquadrature.net/en/acta-updated-analysis-of-the-final-version la Quadrature's analysis of ACTA's final version] and see an [[Against_ACTA|overview of criticisms against ACTA]].
  
#They will first vote on their opinions after holding “exchange of views” on draft reports in the coming weeks (INTA's next exchange of views is 26/03/12 for instance).
+
*To be informed about the next steps to urge Members of the European Parliament to reject ACTA, send a blank email to [mailto:NOtoACTA-subscribe@laquadrature.net NOtoACTA-subscribe@laquadrature.net] to subscribe to our list, or to [mailto:acta-subscribe@laquadrature.net acta-subscribe@laquadrature.net] to discuss ACTA. We won't use your email for anything else.
#Opinions will then be sent to INTA to influence its final report.
 
#The INTA committee will then vote on its on opinion
 
#Finally, INTA will sent this final report to the European Parliament, which will take it into account for its final vote on ACTA.
 
  
'''The contents of INTA's report are therefore very important, and we need to make sure it reflects European citizens' legitimate concern about ACTA.'''
+
* EDRi has also done a series of fact-sheets about specific aspects of ACTA: http://www.edri.org/ACTA_Week
 
+
The following resources are also helpful in better understanding ACTA:
For more detailed information about the ACTA procedure in the European system, please see the [http://www.europarl.europa.eu/oeil/file.jsp?id=5924982 procedure file].
+
*[http://rfc.act-on-acta.eu/fundamental-rights Impact assessment of ACTA on fundamental rights]
 +
*[http://rfc.act-on-acta.eu/access-to-medicines Study on ACTA and access to medicine]
 +
*[http://action.ffii.org/acta/Analysis FFII's analysis of ACTA]
  
https://laquadrature.net/files/images/20120306-Infographie_procedure_ACTA_PE.jpg
 
  
 
[[Category:ACTA]]
 
[[Category:ACTA]]

Latest revision as of 12:32, 3 July 2012


This page lists key points to remember in any discussion about ACTA




Main arguments[edit]

Against ACTA in general[edit]

  • ACTA turns Internet companies (ISPs, service providers) into a private copyright police by forcing to take legal responsibility for what their users do online.
  • ACTA brings broad and dangerous criminal sanctions in a loosely defined way.
  • ACTA bypasses democracy and opens the door to a parallel legislative process, which the European MPs should be particularly angry about.

When calling the INTA committee[edit]

The INTA's report is against ACTA. Ask the vote for the report in its actual state without amendments.

Arguments against ACTA's adoption[edit]

  • ACTA will affect small and innovative market entrants

ACTA will have a chilling effect on innovation. By extending the scope of criminal sanctions for “aiding and abetting” to “infringement on a commercial scale”, ACTA will create legal tools threatening any Internet actor. Widespread social practices such as not-for-profit file-sharing between individuals, editing content on successful or popular news websites, or making accessible innovative tools of distribution, could be interpreted as “commercial scale”. Access, service or hosting providers, website editors will therefore suffer from massive legal uncertainty, making them vulnerable to litigation by the entertainment industries. This will force them to implement censorship measures harming the free Internet.
analysis of ACTA's “criminal sanctions” chapter

  • ACTA will lead to extra-judicial censorship measures

If ACTA is adopted, it will be possible for the entertainment industry to exert pressure on every Internet actor under the threat of criminal sanctions for “aiding and abetting” infringements (art.23.4) and under the guise of “cooperation” between both parties (art.27.3). ACTA also mentions “expeditious measures to deter further infringements” (art.27.1). Under this legal framework, Internet actors will be gradually compelled to deploy automated blocking, filtering of communications and deletion of online content. Such measures will inevitably restrict users' freedoms online.
analysis of ACTA's digital chapter

  • ACTA makes no distinction between for-profit and not-for-profit infringements

ACTA modifies the scope of criminal sanctions in EU Member States, ensuring they will be applied for cases of infringement on a “commercial scale”, defined as inducing “direct or indirect economic or commercial advantage” (art. 23.1). This term is vague, open to interpretation, and just plainly wrong when it comes to determining the scope of proportionate enforcement, as it does not make any distinction between commercial and non-profit infringement.
23.10 of ACTA

Arguments against waiting for EU Court of Justice opinion on ACTA[edit]

Delaying the consent procedure of the EU Parliament by waiting for the ECJ opinion would center the debate on legal issues, and the EP would be perceived as escaping its political responsibility.

  • 4 EU Parliament committees have urged for the rejection of ACTA, undergoing a thorough political assessment that is enough to justify the rejection of ACTA. The lead committee, on "International Trade", also recommended the whole Parliament to reject ACTA.
  • By contrast, the ECJ opinion will be legalistic in nature, leaving out important political issues (see art. 218.11 TFEU). In particular, the opinion will probably not look at the crucial fact that ACTA would set in stone today's contentious policies (an impact study is still expected on EUCD and IPRED). It would block any possibility for the EU and national lawmakers to propose positive reforms in this field.

The procedure in the European Parliament[edit]

For detailed information about the ACTA procedure in the European system, please see this page ACTA: Procedure in the European Parliament.

How to act?[edit]

To help us fight ACTA, visit our page How to act against ACTA.

Learn more[edit]

  • You should also read our counter-arguments to the Commission's disinformation about ACTA, it answers most arguments that you might encounter by those defending ACTA.

The following resources are also helpful in better understanding ACTA: