[liberationtech] FFII letter to European Court of Justice on ACTA

Tue Nov 13 08:02:22 PST 2012

FYI, we submitted amicus curiae observations to the Court of the
European Union.

Regards,
André (arebenti at ffii.org)

[ ACTA / Economy / Innovation ]
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FFII letter to European Court of Justice on ACTA
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Brussels, 13 November 2012 -- The Anti-Counterfeiting Trade Agreement
(ACTA) is not compatible with human rights treaties or the European
Treaties, according to the Foundation for a Free Information
Infrastructure (FFII). The FFII writes this in a letter to the Court of
Justice of the European Union.

This spring, the European Commission asked the court its opinion on
whether ACTA is compatible with the European Treaties, in particular
with the Charter of Fundamental Rights of the European Union. The
European Parliament did not wait for the court's opinion and rejected
ACTA on 4 July 2012 in a 478 to 39 vote with 165 abstentions. The
commission did not withdraw its request for an opinion after the
parliament's decision. The commission announced that if the court finds
ACTA compatible with the European Treaties, it may re-propose ACTA to
the parliament.

In its letter to the court the FFII argues that the commission's request
is not admissible, as the parliament already took its decision. In case
the court finds the request admissible, the FFII makes some observations.

The copyright and patent systems need reform, according to the FFII.
FFII analyst Ante Wessels: "There are serious problems concerning access
to medicine and knowledge, and patent trolls have a stronger position
than independent rediscovery inventors. This is detrimental for
societies. It is time to put inventors back in the driver's seat.
Current copyright and patent law interfere disproportionately with
citizens' rights to access to knowledge and with the rights of remix
artists, independent rediscovery inventors and follow-up inventors. By
strengthening enforcement, ACTA makes the interference with these human
rights even worse."

The FFII also notes that ACTA puts an impossible task on Internet
service providers. Ante Wessels: "Under the threat of high damages and
criminal measures, Internet service providers will have to protect a
copyright system which disproportionately interferes with human rights.
At the same time, they will have to protect human rights. It is
foreseeable that this will go wrong."

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Background information
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ACTA is a multilateral agreement which proposes international standards
for enforcement of copyright, patents and other exclusive rights.

The FFII letter is an amicus curiae (friend of the court) brief.

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Summary FFII amicus curiae brief on ACTA
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The brief argues that ACTA is not compatible with international human
rights instruments, the European Convention on Human Rights, the EU
Charter of Fundamental Rights, or the European Treaties.

The brief notes that citizens' rights are involved in the referral of
ACTA to the EU Court of Justice, but that citizens themselves are not
involved. The referral is about the people, without the people.
Therefore the Foundation for a Free Information Infrastructure (FFII)
respectfully asks the Court to consider its observations.

The brief argues that the European Commission's request for an opinion
on ACTA is not admissible. The European Parliament already rejected ACTA.

In case the Court finds the ACTA referral admissible, the brief makes
some observations. The first section refers to opinions finding ACTA not
compatible with fundamental rights and the European Treaties. The
section discusses the main arguments against these opinions and
concludes they fail to convince.

The second section explains that ACTA is not necessary, because the
counterfeiting numbers are massively overstated.

The third section explains that ACTA will be ineffective, disregards
adverse effects of fighting counterfeiting, and lacks proper focus in
targeting dangerous products.

The fourth section explains that ACTA will make existing problems worse.
The section discusses problems concerning access to medicine; access to
affordable legal music, movies, games, and software problems; the lack
of an assessment of the impact ACTA may have on our ability to fight
climate change; the lack of an impact assessment on the potential effect
of ACTA on the availability of seeds; the need to rethink copyright,
patent and enforcement law; and foreign extraterritorial privatised
enforcement that undermines the European Convention on Human Rights and
the EU Charter of Fundamental Rights.

The fifth section explains that the ACTA negotiations lacked openness
and harmed international organizations and developing countries.

The sixth section assesses whether ACTA is compatible with article 15 of
the UN International Covenant on Economic, Social and Cultural Rights,
the EU's extraterritorial obligations, human rights impact assessments,
the Guiding Principles on Business and Human Rights, and the European
Treaties.

The brief concludes that ACTA is not compatible with international human
rights instruments, the European Convention on Human Rights, the EU
Charter of Fundamental Rights, or the European Treaties.

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Links
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FFII letter to the Court of Justice of the European Union, original pdf:
http://people.ffii.org/~ante/acta/FFII-ACTA-amicus-brief-2012.pdf

FFII letter to the Court of Justice of the European Union, html export
with endnotes:
http://people.ffii.org/~ante/acta/FFII-ACTA-amicus-brief-2012.html

FFII ACTA blog:
http://acta.ffii.org/

FFII ACTA analysis:
http://action.ffii.org/acta/Analysis

Permanent link to this press release:
http://press.ffii.org/Press+releases/FFII%20letter%20to%20European%20Court%20of%20Justice%20on%20ACTA

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Contact
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Ante Wessels
ante (at) ffii.org
+31 6 100 99 063

FFII Office Berlin
Malmöer Str. 6
D-10439 Berlin
Fon: +49-30-41722597
Fax Service: +49-721-509663769
Email: office (at) ffii.org
http://www.ffii.org/

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About FFII
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The FFII is a not-for-profit association active in twenty European
countries, dedicated to the development of information goods for the
public benefit, based on copyright, free competition, open standards.
More than 1000 members, 3,500 companies and 100,000 supporters have
entrusted the FFII to act as their voice in public policy questions
concerning exclusion rights (intellectual property) in data processing.