Businesses plead for ‘correct understanding’ of ACTA


Considerable misunderstanding about what the Anti-Counterfeiting Trade Agreement (ACTA) is, and especially what it is not, should be addressed before the European Court of Justice gives its verdict within two years, federations protecting copyrights told EURACTIV.

Representatives of several federations acting in the field of copyright said they expected the recent decision of the European Commission to refer the controversial agreement to Europe's highest court would lead to the confirmation that this treaty, recently signed by most EU countries (see background), is in line with fundamental European rights.

However, the business lobbyists admitted that referring ACTA to the court was a setback since a ruling could take one year or two years.

Jeffrey P. Hardy, coordinator of BASCAP, the initiative of the International Chamber of Commerce to Stop Counterfeiting and Piracy, said he was surprised that ACTA "got so much attention" and led to protests across Europe.

Commenting on the referral of ACTA to the European court, he said that his organisation was planning to use the time available to explain "what is in and what is not in" the treaty.

Hardy regretted the many "misunderstandings" about ACTA. In the European Parliament, he said that even MEPs who had previously been very strong supporters of ACTA have recently been expressing "concern and doubt".

ACTA has been under scrutiny for some time and has been the subject of several votes in the European Parliament that were won by the pro-copyright camp. But now many MEPs admit that people have not been properly informed about the negotiations.

The time available provides MEPs an "terrific opportunity" to have a balanced view on issues they see as very critical to their constituents, Hardy said.

"It gives us a terrific opportunity to inform people what ACTA is all about", Hardy added, highlighting a BASCAP report – ACTA in the EU – A Practical Analysis – intended to dispel the misunderstandings.

Marius Schneider of the European Communities Trade Mark Association (ECTA) said the study explains "in comprehensible terms" what ACTA is about. He admitted that for a non-specialist in law, some legal texts could appear as "worrying".

'Most texts refer to physical counterfeiting'

Candice Li, manager for external relations of the US-based International Trademark Association (INTA), stressed that most of the ACTA texts were referring to physical counterfeiting, not content sharing on the internet.

Many fears expressed by protestors are related to the internet and the censoring of users and the attacking of end users. Out of the 45 articles contained in the ACTA agreement, 44 have "nothing to do with online enforcement", she said.

"Only one section deals with enforcement in the digital environment, and within it, there is one provision on infringement. What it says is that enforcement measures that apply offline can apply online."

Li compared a physical store that sells counterfeit goods, like toothpaste or batteries, to websites selling the same kinds of products. ACTA says that if law-enforcement authorities can take action against physical stores, they should be able to do the same on an online store, she insisted.

"It's not about file sharing. There is nothing that says that internet providers need to monitor users, or that a person who puts a link to his favourite song on Facebook is going to get arrested. There is nothing in ACTA about that," the INTA representative said.

Hardy also defended the accord. "There is nothing in ACTA about internet filtering, nothing about domain name blocking, nothing about 'three strikes' [internet disconnection in case of repeated offenses], nothing about internet censorship," he said.

"And nothing on searches on laptops," Schneider added, referring to the widespread expectations that customs authorities would check personal computers or music players for unlicensed software or content.

Li added that contrary to rumours, internet service providers would not be required to spy on their clients. ACTA actually limits the liability of ISPs, she said.

Angela Mills Wade, executive director of the European Publishers Council (EPC), welcomed the European Commission's decision to refer the ACTA Treaty to the Court of Justice.

"Although this will inevitably lead to a delay in the ratification process, we are confident that the Court will uphold the legality of ACTA's provisions," she said.

"We also welcome the clear statements from the Commission in the wake of unprecedented rumour and misinformation that ACTA will not censor websites or shut them down; ACTA will not hinder freedom of the internet or freedom of speech. ACTA will change nothing about how we use the internet and social websites today since it does not introduce any new rules. ACTA only helps to enforce what is already law today."

She added: "ACTA will have a positive impact on protecting Europe’s industries, jobs and people […] Failure to ratify ACTA would jeopardise the future of secure copyright protection at EU level."

MEP David Martin (S&D, UK), said that while the Court of Justice referral is being prepared, the time set aside for Parliament's assent to ACTA should instead be used to prepare an interim report setting out questions to the European Commission and EU Member States on how it is to be enforced.

He stressed that Parliament should prepare its own questions, rather than simply associating itself with the European Commission's parallel referral of ACTA to the court.

Examples could include questions about how border control agencies would be expected to deal with counterfeit imports, or whether internet service providers would have to enforce ACTA against users, and if so what legislation would require them to do so.

"There is no 'three strikes' rule in ACTA, but we do not know how internet service providers will interpret the tasks given to them and if they will feel that they have the duty to cut people off the internet," he said.

"What I plan to do is bring about clarity on ACTA in the next year, to provide the facts for this Parliament to vote", Martin declared, adding that in the coming weeks he planned to meet as many civil society representatives as possible to discuss citizens' concerns while drafting his interim report.

French Green MEP Yannick Jadot complained that "procedural excuses" had been used to avoid involving Parliament, and noted that MEPs had learned of the Commission decision to refer ACTA to the Court of Justice from the press.

"I'm not sure that this is in line with our inter-institutional agreement with the Commission", he said.

MEP Metin Kazak (ALDE, Bulgaria), said that in many EU countries, the protests had prompted governments to "give up" on ACTA.

"Both in the ACTA text and also in communication about it there are many cumbersome words and phrases - that something will perhaps happen or may happen. In such circumstances you have to expect citizens to be afraid from the possible consequences", he said.

Inese Vaidere (EPP, Latvia), said the Commission had done too little to explain ACTA's benefits, even though there was much to be explained, such as the definitions of terms "counterfeiting" or "commercial scale". "Now it may already be too late. I fear that we don't have much chance of reviving ACTA. The Commission has not done its job", she said.

The President of the Party of European Socialists (PES), Sergei Stanishev, stated: "Our political and public pressure is already showing results. After all the demonstrations across Europe, some member states, like Poland and my own country Bulgaria, have decided not to ratify the agreement. Now we must seize the opportunity and continue to fight against ACTA more resolutely than ever."

He added: "We are on the side of citizens. We must coordinate at national and European level and engage all society, from NGOs to political parties and civic groups, in our fight against an agreement that is fundamentally flawed and alarmingly undemocratic."

ACTA was first announced in late 2007, when the US, the EU, Switzerland and Japan said they would negotiate a new intellectual property enforcement agreement to counter the trade of counterfeit goods across borders.

According to former trade negotiators, EU countries attempted to clinch an agreement under the banner of the World Intellectual Property Organisation (WIPO), but as members could not agree, like-minded nations formed ACTA.

The 52-page treat was signed by the US signed in October, along with Australia, Canada, Morocco, New Zealand, South Korea and Japan. On 26 January, 22 European countries and the European Commission signed as well (the remaining being Germany, the Netherlands, Slovakia, Estonia and Cyprus).

The Commission supports ACTA and sees benefits for European exporters and creators, ensuring they profit from a level playing field worldwide. The agreement will enter into force after ratification by six signatory states. None has ratified so far. The ratification by the European Parliament of the Commission's signature is also required. 

Lately, as protests across Europe took the political class by surprise, the European Commission published a document intended to fend off fears about ACTA. In the form of questions and answers, the EU executive explains that ACTA will not monitor the internet, that it does not change EU law and that it does not give preference to industry over fundamental rights.

  • European Communities Trade Mark Association (ECTA):Website
  • International Trademark Association (INTA):Website

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