Counter-Arguments Against ACTA

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01/02/2012 - In the past few days, the EU Commission has been engaging in a aggressive campaign to present ACTA as a legitimate agreement.

By doing so, it engages in the same misinformation techniques that it says it seeks to tackle.

Below are arguments that can help you debunk the EU Commission's lies on ACTA, which are relayed by pro-ACTA members of the EU Parliament.


Contents

"ACTA is not the EU's SOPA or PIPA"

In some important ways, ACTA is worse than SOPA. ACTA is the global blueprint for repressive laws such as SOPA:

ACTA is the blueprint for SOPA/PIPA in the US

While SOPA/PIPA may have been put aside for a moment, ACTA is a global agreement negotiated outside of democratic arenas and meant to be imposed globally.

EU elected representatives won't be able to modify ACTA

If SOPA were to be adopted, the US Congress could amend or abrogate it. ACTA will prevent the EU and its Member States as well as other signatories to change their copyright and patent laws, and to fix their broken and brutal enforcement policies to adapt to the new economy of sharing.

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 threat of criminal sanctions for "aiding and abetting" (art.23.4) and under the guise of "cooperation" with the copyright industries (art.27.3). ACTA also mentions "expeditious measures to deter further infringements" (art.27.1).

Internet actors will thus be compelled to deploy automated blocking, filtering of communications and deletion of content online. Such measures will inevitably restrict users' freedoms online.

Mexican lawmakers stress the dangers of ACTA for freedom of expression and culture

The Mexican Senate approved a resolution calling on the government not to sign the anti-counterfeiting agreement ACTA. In its conclusions, it argues that the digital chapter could lead to privatized online censorship, with harmful effects on Net neutrality (and therefore freedom of expression), access to communications or access to culture.

ACTA is part of the Commission's dangerous copyright agenda

By defending this SOPA-style policy in ACTA, the Commission is paving the way for the copyright industries' enforcement agenda, preventing any true debate on alternative to repression. This fits with the announced revision of the IPRED and eCommerce directives.


"ACTA is about large-scale and organised infringements of intellectual property"

This is simply false, as the sanctions provided in ACTA relate even to not-for-profit infringements.

ACTA covers for-profit and not-for-profit infringements

Cases of infringement on a “commercial scale”, defined as “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.

ACTA will impact small and innovative market entrants

ACTA will also chill innovation in by extending the scope of criminal sanctions for “aiding and abetting” to such “infringement on a commercial scale”, ACTA will create legal tools threatening any actor of the Internet. Access, service or hosting providers will therefore suffer from massive legal uncertainty, making them vulnerable to litigation by the entertainment industries. They will then be forced to implement measures harming the free Internet. Widespread social practices, like not-for-profit file-sharing between individuals, as well as editing a successful information website or distributing innovative technological tools, could be interpreted as “commercial scale”.

"ACTA does not even change EU law" and "provides adequate protections for fundamental rights"

Again, the Commission keeps arguing that ACTA does go further than EU law, but it's simply not true.

On damages and border measures in particular, ACTA goes beyond EU law

In an opinion released last year, leading European academics shows how ACTA clashes both with EU law and with the enforcement provisions of the TRIPS Agreement - which is binding for the EU - particularly on border measures, damages, and lack of safeguards.

A EU Parliament study underlines the lack of safeguards and call on EU Parliament to reject ACTA

An independent study commissioned by the Directorate-General for External Policies of the European Parliament recognizes ACTA's lack of safeguards for fundamental rights, while underlining that it is "difficult to point to any significant advantages that ACTA provides for EU citizens beyond the existing international framework. According to the study, "unconditional consent would be an inappropriate response from the European Parliament given the issues that have been identified with ACTA as it stands".

ACTA will prevent needed reform of EU copyright law

Even if ACTA respected EU law, it would still not be acceptable, as it would bind the whole Union to a plurilateral agreement that would prevent us from reforming our copyright and patent law. This is especially shocking at a time when many citizens and advocacy groups are calling for a reform of these laws.


"ACTA is needed because protecting intellectual property is protecting EU jobs"

ACTA won't protect European SMEs

Geographical indications – a key point for Europe's small businesses and cultural heritage – are mostly excluded from ACTA. The few references to geographical indications in ACTA will have no or very little effect on third countries' national law.

ACTA will favor big businesses over innovators and creators

ACTA will actually contribute to chilling innovation and creativity in the EU and worldwide. Beyond broadening the scope of copyright, patent and trademarks enforcement, ACTA establishes new procedural rules favouring the entertainment industries at the expense of small and medium businesses. The procedures provided by ACTA will have a dramatic chilling effect on potential innovators and creators, especially considering ACTA's insane damage provisions (during a trial, right holders will be able to submit their preferred form of damage computation, see art. 9.1).

Repression is costly and ineffective

The Commission keeps stepping up repression, when in many instances counterfeiting is at its core a market failure due to the inadequacy of IPR holders' business models and contracts. At the same time, no EU Commission initiative exists to take a positive approach on discussing new financing models for the culture economy fit for the digital environment.


ACTA is also needed to protect our safety and health

ACTA will do little against truly harmful counterfeiting

China, Russia, India and Brazil, countries where most of counterfeiting is produced, are not part of ACTA, and have stated publicly that they will never be. Considering the widespread opposition to ACTA, the agreement has lost all legitimacy on the international stage.

ACTA is a badly drafted text which takes the wrong approach to tackling counterfeits

If protecting health and safety was really the priority, then ACTA is just a bad and overbroad text. It mixes many types of infringement and enforcement measures, in which life-endangering fake products and organized crime activities are considered together with non-for-profit activities that play a role in access to knowledge, innovation, culture and freedom of expression.

"The negotiations of ACTA have been transparent"

Transparency was only made possible under the pressure of civil society

Contrary to the Commission's claims, transparency on ACTA was only made possible after negotiation documents were leaked by insiders worried of ACTA's consequences. These leaks forced the negotiators to release negotiation texts in the Spring of 2010, more than 3 years after the beginning of the negotiations.

ACTA is part of the international agenda of copyright, patent and trademarks lobbies

ACTA is a direct by-product of the lobbying offensive launched in 2004 by the International Chamber of Commerce, presided by the then CEO of Vivendi-Universal Jean-René Fourtou, whose wife acted as EU Parliament rapporteur for the IPR Enforcement Directive (IPRED) adopted the same year. It is one of the worst examples of private interests taking over policy-making.

ACTA bypasses traditional international fora

The negotiation and implementation of ACTA bypasses legitimate international organizations (WTO, WIPO) where copyright, patent and trademarks policy are discussed. This is all the more unacceptable considering that a growing number of countries understand the importance of reforming these policies by breaking away from blind repression.

ACTA will continue to circumvent democracy

In the future, ACTA's scope could also be easily expanded through the “ACTA committee”. The latter will have authority to interpret and modify the agreement after it has been ratified, and propose amendments. Such a parallel legislative process, which amounts to signing a blank check to the ACTA negotiators, would create a precedent to durably bypassing parliaments in crucial policy-making, and is unacceptable in a democracy. This alone should justify that ACTA be rejected.