ACTA: Will The EU Parliament Give Up its Power?

Paris, November 23rd, 2010 — After last week’s release of the final version of the ACTA text, the European Parliament is about to adopt a resolution preparing the upcoming ratification process, during a plenary session scheduled tomorrow. This vote must be an opportunity for European lawmakers to restate their opposition to this agreement, which is bound to spread internationally some of the most extremist provisions regarding the civil and criminal enforcement of copyright, trademarks and patents. Disturbingly, the conservative EPP group tabled an isolated resolution, which gives up on the Parliament’s prerogatives.

Before the European Parliament decides to approve or refuse the ratification of ACTA (“consent vote”), it will vote on Wednesday on a resolution to remind the Commission of its views regarding the agreement. A common resolution between the European Liberals (ALDE), the Social-Democrats (S&D), the Greens (Greens/ALE) and the United Left (GUE/NGL) has been tabled¹The joint resolution is available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+MOTION+P7-RC-2010-0617+0+DOC+XML+V0//EN. It objects to various aspects of the ACTA agreement, including its content and process. On the other hand, the most important political group — the conservative EPP — walked out of the negotiations on this joint resolution and is putting forward a very worrying proposal which overlooks all the important issues²http://www.europarl.europa.eu/sides/getDoc.do?type=MOTION&reference=B7-2010-0618&language=EN.

Whereas the majority of other European political groups worry that ACTA might go beyond existing EU legislation (or acquis communautaire)³See for instance the legal analysis by FFII, “Some examples of ACTA going beyond present EU legislation (the acquis)“. Address: http://people.ffii.org/~ante/acta/acta-acquis2.pdf, the Conservatives pretend that ACTA does not imply any change to the acquis communautaire, even though the forthcoming reform of the EU copyright, trademarks and patent enforcement framework suggests otherwise. Furthermore, the EPP resolution ignores all the important concerns voiced by some of the EU’s most important trade partners as well as experts and civil society organizations⁴–75 US intellectual property scholars wrote to President Barack Obama to criticize its administration for “negotiating a far-reaching international intellectual property agreement behind a shroud of secrecy, with little opportunity for public input, and with active participation by special interests who stand to gain from restrictive new international rules that may harm the public interest”: http://www.wcl.american.edu/pijip/go/blog-post/over-75-law-profs-call-for-halt-of-acta
–Brazil expressed it disagreement with ACTA at WIPO in late-October, saying that “ACTA may affect the balance of rights and obligations embodied in the international intellectual property system between rights holders, on the one hand, and third parties who are users of protected goods and services, on the other”: http://keionline.org/node/999
–India did too, stressing that, ACTA includes “several elements which have far reaching implications for ACTA non-Members”.
–China also criticized ACTA, stating that “excessive or unreasonably high standards for IPR protection could unfairly increase monopolistic profits of right holders, eating into the consumer surplus and further broadening the gap between the rich and the poor in the world”: http://keionline.org/node/1001
-The day before the release of the last ACTA draft, the Senators of Mexico (a negotiating country) passed a resolution calling for the suspension of negotiations and the launch of a wide-ranging consultation process: http://www.merca20.com/mexico-fuera-de-acta-casi/
–United Nations Special Rapporteur on the Right to Health, Anand Grover, commented during an October 28 public consultation on ACTA and the right to health, that the process for creating ACTA appears to violate international human rights obligations for ensuring participation in law making affecting access to medicines and other health issues: http://www.wcl.american.edu/pijip/go/blog-post/challenges-to-acta-mount-the-week-in-review.

“The European Parliament must reaffirm its power to legislate and protect citizens by strongly rejecting the EPP resolution! ACTA goes way beyond any trade agreement and have a direct impact on freedom of expression online, privacy and access to medicines. If the Parliament were to accept this process through the adoption the EPP resolution tomorrow, it would be renouncing to its own powers.” says Jérémie Zimmermann, spokesperson for La Quadrature du Net.

Citizens can call their elected representatives (using our tool Political Memory), especially members of the EPP, ECR and EFD groups, in order to urge them to reject the EPP resolution, to make sure that the fundamental freedoms and the rights of the public are protected by European lawmakers.

Our concerns with the EPP resolution

The EPP resolution:

• puts pressure on Internet Service Providers in order establish extra-judicial copyright enforcement in the digital environment in the spirit of the Gallo report⁵http://www.laquadrature.net/en/Gallo_report. By doing so, it threatens the fundamental freedoms of Internet users. In contrast, the joint S&D, ALDE, Greens and GUE resolution “instructs the Commission to present to Parliament, before initialling the Agreement, a legal analysis of the meaning, legality and enforceability of ACTA’s desired policies regarding cooperation between service providers and right holders, particularly in reference to how cooperative efforts within the business community will not limit fundamental rights of citizens, including the right to privacy, the right to freedom of expression and the right to due process”.
• paves the way for the criminalization of non-commercial infringement of copyright, patent and trademarks, through the purposely vague notion of “commercial scale”⁶ACTA provides that “acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.“. In contrast, the joint resolution “instructs the Council and Commission to provide a legal assessment before initialling of the agreement of whether the ACTA definition of “commercial scale” is consistent with the WTO China ruling, is fully in line with the EU principles of proportionality and subsidiarity, and will not limit the use by Member States of national exceptions in relation to criminal enforcement measures”.
• fails to recognize the illegitimacy of ACTA, which circumvent competent international organizations like WIPO or WTO⁷See http://www.laquadrature.net/en/acta-an-outdated-agreement-that-must-be-rejected, where interesting projects for the reform of the global IPR regime are currently explored, in order to push for more extremist standards at the international level. In contrast, the joint resolution “deplores that these negotiations and Agreement have not been conducted in the framework of the existing multilateral fora (e.g.WTO and WIPO) (…)”. The resolution also “asks the Commission to refrain from imposing this Agreement on developing countries and to advocate with the other ACTA parties, so that procedures and terms of accession to ACTA are appropriately flexible and take into account the development levels of acceding countries (…)“. Moreover, it paves the way to a durable bypass of democracy by establishing an ad hoc ACTA committee competent to review amendments to the agreement.