Stopping ACTA: ITRE Committee
Published 11:30, 28 May 12
This is the first of my posts about the various committees that will be offering their recommendations to the European Parliament through the main INTA (international trade) committee. It concerns ITRE, the Committee on Industry, Research and Energy, which will be holding its crucial vote on May 31 - so, no time to lose.
Here's how ITRE's home page describes itself:
The world in which we live is marked by an ever faster pace of change. The role of Europe in the world economic order is being redefined, new competitors are emerging that pose a challenge to which Europe must respond. The key issue for the future will therefore be whether and how Europe can succeed in maintaining and expanding its economic base and in ensuring that the European social model of a social market economy remains viable in future. To do this, we need a competitive economy with an innovative industrial base capable of developing, and itself applying, new technologies.
Which sectors of the economy will provide a secure revenue basis well into the future, allowing us Europeans to maintain our social standards and preserve our environment?
The Committee on Industry, Research and Energy (ITRE) plays a key part in the discussion of these issues, since the European Parliament has law-making powers in the areas of energy and research policy, space policy and the further development of ICT infrastructure.
It is our task to define policies in all these areas that are not geared to achieving short-term and simplistic solutions, but create a sustainable and long-term legislative framework.
There's an interesting emphasis on coping with change and planning for the future, which might be worth bearing in mind when phoning or framing an email to ITRE committee members.
Talking of which, here are those from the UK:
And here's what I'm sending them:
I am writing to you in connection with the imminent submission of ITRE's opinion on ACTA. As you know, this has become an extremely contentious issue, with much misinformation flying around. Since I appreciate that time is short, and you will be very busy on this topic, I just wanted to point out four basic reasons why I feel ACTA is problematic, and should be rejected.
ACTA looks to the past, not the future
One of ACTA's fundamental flaws is that it seeks to impose late 20th-century regulation on 21st-century technologies. That can be seen from the fact that it treats online activities as if they were just like those in the physical world. But fake goods or counterfeit medicines are nothing like unauthorised copies of digital files. Most importantly, the former can be life-threatening, whereas the latter cannot. In addition, the former are the products of organised criminal gangs, whereas digital filesharing is something that ordinary people do - indeed, it's probably true to say that the vast majority of young people engage in it. To apply the same sanctions against both is clearly quite inappropriate, and risks throttling innovation in the online world.
ACTA has dangerously vague wording that could criminalise trivial online activities
Throughout the treaty, measures are couched in very vague terms, which is deeply problematic given the blurring of the distinction between organised crime and online sharing. It also means that the European Parliament is being asked to ratify something whose real-world effects are unknown.
For example, Article 23 of ACTA is as follows:
Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.
The definition of "commercial scale" is crucially important, because it is used throughout ACTA, and triggers the application of criminal sanctions (which would include, for example, extradition to the US - as you know, a particularly hot topic in the UK at the moment.)
The section above says "acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage." But no minimum level is set here or elsewhere - something that would have been easy to do. Instead, we have "at least those carried out as commercial activities for direct or indirect economic or commercial advantage".
Because of the imprecision of this wording, that would include a Web site where Google ads were being run. Now imagine that someone posted a link on that site to an unauthorised copy of material elsewhere on the Net, and that this causes people to visit that page with the link, and sometimes to click on the Google Ads. The posting of the link would then be a commercial activity for indirect economic gain, and the person running the site would fall foul of laws implementing ACTA.
The vague, over-broad wording of ACTA means that it is likely to applied in a completely disproportionate fashion. The fact that the ACTA negotiators chose not to avoid that problem by specifying a minimum level below which it did not apply suggests that they were happy with this extreme interpretation.
ACTA deliberately avoids protecting civil liberties
As well as particular issues to do with proportionality, there is a larger one around preserving freedoms. As the important court case in the European Court of Justice recently established (http://curia.europa.eu/juris/document/document.jsf?text=&docid=119512&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=291042):
a fair balance [must] 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
The problem is that ACTA is completely one-sided on this question: it provides no safeguards for civil liberties. Disturbingly, it tries to hide this fact in a particularly troubling way. Here's what Amnesty International wrote on the subject (https://www.amnesty.org/en/news/eu-urged-reject-international-anti-counterfeiting-pact-2012-02-10):
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.
That is, just as ACTA avoided setting a minimum level at which criminal sanctions would be applied, so it deliberately uses language that literally has no meaning in the context of an international treaty: "fundamental principles" and "fair process" simply do not exist, and are therefore worthless as safeguards for civil liberty. What's worrying is that ACTA negotiators would have known this - this was a deliberate attempt to give the appearance of balance and proportionality while ensuring that the resulting wording of the treaty would in practice be entirely one-side in favour of enforcement."
ACTA won't - and cannot - achieve what it sets out to do
The European Commission has emphasised the damage that counterfeit goods are doing to the European economy, and the threat they represent to jobs. Here, for example, is what it said in its latest ACTA press release (http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/354&format=HTML&aged=0&language=EN&guiLanguage=en):
ACTA is an international trade agreement that will help countries work together to tackle more effectively large-scale Intellectual Property Rights violations. Citizens will benefit from ACTA because it will help protect Europe's raw material - innovations and ideas
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 the Commission's own statistics on counterfeiting, referred to above, have the following to say (http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/506&format=HTML&aged=0&language=en&guiLanguage=en):
In 2010, 85% of the total amount of articles infringing IPR came from China. This represents an important increase compared to 2009 (64%). Other countries were the main source of provenance for different product categories, notably Turkey for foodstuff, Thailand for non-alcoholic beverages, Hong Kong for memory cards and India for medicines.
None of those countries is a signatory to ACTA. This means that even if ratified, ACTA will have zero effect on those countries' output of counterfeits. ACTA will only affect signatories, and the only signatory that is mentioned in the Commission's own list of top counterfeits is Greece, which supplies 0.91% of counterfeit goods in the EU. In other words, 99.09% of counterfeit goods will be unaffected if ACTA goes into effect. ACTA will do nothing to protect European citizens against counterfeits, which must be tackled with the laws we already have. We simply don't need ACTA.