ACTA – The Facts (Source)
For almost four years, 38 countries have been engaged in secret negotiations, the effects of which will be felt by millions of people.
What is ACTA?
The Anti-counterfeiting Trade Agreement (ACTA) is a multilateral agreement that recommends international standards for the enforcement of intellectual property rights. ACTA was negotiated by a handful of nations that consulted only with certain industries and is considered controversial not only for what it says but also for the process by which it was created. This document provides a short overview of the questions surrounding ACTA in order to offer insight as to the origins of the broad-based resistance to it. As mentioned earlier, the manner in which ACTA was created already robs it of any plausible claim to democratic process or legal credibility. A ratification would not only damage the reputation of international deal-making and strangle innovation but would also have a significant impact on freedom of expression, access to culture and data privacy. The ratification process for ACTA has already begun at the national level in various member states although the true significance of the agreement is underestimated in many of these countries. We ask that European politicians thoroughly evaluate the impact of ACTA before the final ratification vote on ACTA at the EU level.
Since neither the European Commission nor the European courts have provided satisfactory assurances or clarifications, we ask that both the European Parliament and national parliaments vote "no" on the pending authorization procedure for ACTA.
A lack of democratic credibility
ACTA skirted established multilateral forums like WIPO and WTO, which are based on democratic principles and openness, and which are guaranteed to adhere to clear negotiation procedures.
ACTA was negotiated behind closed doors in a process from which most developing countries were excluded and which had little to no democratic accountability at either the UN, EU or national level.
ACTA seeks to establish a new institution called the "ACTA Board" but without defining any responsibility on the board's part to work in an open, transparent or integrated manner or any means by which this new committee could be guaranteed to adhere to any such process.
The unelected "ACTA Board" will be responsible for the implementation of the agreement and will even be empowered to make changes to the agreement after it has already been accepted by member states.
To this day, not a single participant in the development of ACTA has provided access to the original negotiation documents, with which the many ambiguities and unclear sections of the agreement could be examined and evaluated.
The commission has not conducted a special evaluation of the ramifications of ACTA but has instead simply used an older one that served as a guideline for the enforcement of intellectual property rights (I and II). Neither was there a special evaluation of the impact on basic rights, especially those for non-member countries, which often don't have the same data privacy, freedom of expression or constitutional guarantees as EU member states.
Dangers for freedom of expression and access to culture
The interests of copyright holders have clearly been placed above freedom of expression, data privacy and other fundamental rights.
ACTA would place the regulation of freedom of expression in the hands of private corporations since the agreement requires third parties, like Internet Service Providers (ISPs), to monitor online content, even though it's not their place or role to make determinations in issues of freedom of expression.
ACTA could impede access to the cultural inheritance of a society since it increases the penalties and risks of using works whose owners or copyright holders are either difficult to identify or find (so-called "orphan works").
The final shape of the agreement is still vague and much of its meaning won't be clear until the final ratification, but could easily mean that large numbers of citizens would be criminalized for minor offenses.
Dangers for data privacy
ACTA forces ISPs to monitor the content on their networks and to disclose the private data of alleged infringers. Lawyers and putative copyright holders in Europe already use strong-arm tactics to exploit innocent users by trying to charge them with huge sums in the form of "severance payments" in order to avoid court procedures. The EU should seek to forbid such politics rather than export them to other countries.
Unfairly increasing the liability for ISPs would create not only an incentive to increase overall monitoring but also to use ever more invasive techniques to identify alleged infringers such as, for example, extensive monitoring of communications like "Deep Packet Inspection". All of these means are gross encroachments of a user's privacy.
Barriers to Innovation
ACTA could have a negative impact on innovation. If you consider that innovation, especially in software development, often occurs in legal "gray areas", it seems unavoidable that the high finanical and legal penalties recommended by ACTA would restrict digital innovation as developers would rightly fear that they might accidentally infringe on copyrights.
Tougher penalties could scare off smaller enterprises that can't afford expensive litigation.
Acta could restrict competition in certain markets. Since ACTA would impose more legal responsibility on ISPs, many of the smaller ISPs would not be able to afford or produce the capacity or resources to compete, which would give largers ISPs a significant advantage.
Harmful for trade and markets
Even if the EU were to consider ACTA a legally binding document, the United States has already made clear that it considers the ACTA to be a non-binding "agreement" rather than a law. Such uncertainties as to ACTA's actual legal standing could lead to several problems, not least of which is that the US would have greater flexibility and thus a competitive advantage over the EU.
The recommendations of ACTA that affect data privacy and freedom of expression would be exponentially more dangerous in countries without a strong fundamental legal system.
ACTA could cause unfair restrictions in international trade. As China has already shown, informal and illegal agreements with ISPs could be used as untariffed trade restrictions.
An unclear legal situation
The vague wording of some of the central definitions of ACTA makes the actual legal ramifications unclear. Since the agreement would introduce much higher implementation standards than existing agreements (e.g. TRIPS) and contains only vague and unenforcable references to guarantees, ACTA is not in line with current international legal standards. ACTA is not compatible with European standards for protection and advancement of universality, integrity and openness of the Internet, as designed by the European Parliament. This law empowered states with "the responsibility to ensure that their actions conform to accepted standards of international human rights and the fundamental rights of citizens and do not have any adverse or over-reaching effects on access to or the use of the Internet".
Conclusions
ACTA could have a severe, negative impact if it cannot strike the right balance between protection of copyright and guaranteeing fundamental rights for the rest of society such as freedom of expression, access to information and culture, and data privacy.
The European Parliament has already examined the problems with ACTA—including the massive legal problems associated with it—and published them its own study. This study clearly states that "it is difficult to find any significant advantage that ACTA would offer to EU citizens over and above those already guaranteed by existing international law".
The study recommends that "an unrestricted approval would be an inappropriate reaction for the European Parliament considering the problems that have been identified in the current formulation of ACTA".
We ask that European politicians consider the full impact of ACTA. Without further satisfactory guarantees and clarifications on the part of the European Commission and the European court of law, we ask that the European Parliament vote "no" on the pending authorization procedure for ACTA.
Formation of public opinion and democracy can only work if the thoroughly engaged and interested public is suitably informed. If such information is kept from the people, a true public opinion cannot be known and democratic society is sunk.
The manner in which ACTA was created and continues to be developed leaves us with only one option: sink it!
