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."
ACTA is a multilateral agreement which proposes international standards for the enforcement of copyright, patents and other exclusive rights.
The FFII letter is an amicus curiae (friend of the court) brief.
Summary FFII amicus curiae brief on ACTA
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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The FFII is a not-for-profit association, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1,000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.