My Blog: Reply to Philippe de Buck regarding #EC not being happy #EP is referring #ACTA to #ECJ cc @StopACTAnow

Philippe de Buck from the European Commission has written a letter to ACTA Rappateur David Martin MEP.  Here is a link to that letter: http://www.iccwbo.org/uploadedFiles/BASCAP/Pages/Business%20Europe.pdf

I will comment on the bulk of his letter:

The European Commission has announced that it will refer the Anti-Counterfeiting Trade Agreement (ACTA) to the Court of Justice of the European Union to assess whether it is in any way incompatible with the EU’s fundamental rights and freedoms. We are convinced that this referral to the Court should only confirm what the Legal Services of the Commission and the Parliament have already said, namely that ACTA does not go against fundamental rights and the EU acquis. On the contrary it is a balanced agreement aiming at improving the protection and enforcement of intellectual property rights globally.

I remain unconvinced that a referral to the Court would only confirm what you state it would confirm, and this is the reason the EP should refer it’s own questions to the Court regarding ACTA. My current opinion is that ACTA is an unbalanced agreement, and while it’s aims are laudable, it’s vagueness and opacity has left me concerned for unintended consequences and unable to make a fully informed decision on whether to accept ACTA by voting “Yes” to it in its current, FINAL, form.

The European Parliament will also soon have the first debate on ACTA with a workshop on 1 March. We would like to call for an open debate that takes account of the relevant economic interests affected by counterfeiting and piracy and examines wider societal concerns related to new technologies and fundamental freedoms. This will require a fact-based examination of ACTA centred on its actual content and its overall benefits for European growth, employment and innovation. From our perspective, ACTA will provide direct benefits to the EU by strengthening international cooperation in the fight against counterfeiting and piracy in traditional trade and internet commerce.

I welcome your call for an open debate.  I would have wanted open debates regarding ACTA from the start of and throughout its negotiation. Alas, this did not happen for various reasons. I welcome a facts based examination of ACTA and would kindly request all the facts.  I would request all the ACTA key preparetory works and I would request all opinions [legal, etc] on ACTA. I would further request that my aforementioned requested documents are free from any redaction and made freely available to the public.  Only on release of these documents could I and others come to a fully informed view on ACTA.  My default view on ACTA is “No” for I cannot come to a fully informed view to be able to say “Yes” without the aforementioned documents.

Ensuring effective protection and enforcement of intellectual property for Europe’s innovative companies is a priority for BUSINESSEUROPE. European companies are especially exposed to counterfeiting due to the high value added of our exports and the numerous brands that are the pride of our industry. SMEs are particularly vulnerable to sales losses and job losses and the risk of counterfeiting will make them less willing toinvest in innovation and international development. The International Chamber of Commerce has estimated that counterfeiting and piracy would put 2.5 million legitimate jobs at risk each year. “

Via the Commission, I feel we have a very good understanding of what Business wants.  I am concered with what EU Citizens and Business want. Since I believe the Commission is taking a Business-centric view on ACTA [which you highlight very well], I am forced to take the Citizen-centric view so that Citizens may be equally represented in the ACTA debate.

Counterfeiting is a global scourge that threatens the health and safety of consumers, destroys thousands of jobs and supports the most contemptible criminal activity. Just to highlight its impact on a product of particular importance for consumers, from 2006 to 2009 the number of counterfeit medicines seized at EU borders increased three-fold to 7.5 million items according to customs statistics. Counterfeiting also directly undermines the benefits of free trade by creating unfair competition and is a very real threat to growth and jobs. We have repeatedly called for stronger measures to fight against counterfeiting and have therefore supported the ACTA negotiations.

Counterfeiting is bad. Criminal activity is bad. Job losses are bad. Concern for the Health and Safety of consumers is good. Free trade is good. Growth is good. Water is wet. Let’s move on.

 “ACTA will provide genuine benefits in the fight against counterfeiting both in traditional trade and in internet commerce.

It is clear that ACTA could provide genuine benefits to certain parties.  It is not clear that all parties effected by ACTA would gain genuine benefits.  It is not clear that any genuine benefits gained in total by all parties comes at a price worth paying, ie, too-much-to-bear genuine harm to parties effected by ACTA.  For me to be convinced to say “Yes” to ACTA.  I must be convinced, without a shadow of a doubt, that the genuine benefits ACTA would bring outweigh the genuine harm ACTA could cause.

2. For internet commerce, ACTA has the advantage of codifying a coherent set of rules to deal with the expanding trade of counterfeit and pirated goods over the internet. We recognise that this issue creates controversy in relation to privacy concerns although legal opinions of the EU institutions have highlighted that these concerns are unfounded. Nevertheless, ACTA as well as the existing body of EU law in this area tackles the enforcement issue in an effective and balanced manner because the rule of law applies in the virtual world just as it does in the real world. EU authorities must recognise that there are both advantages and risks associated with the development of internet commerce.

Nevertheless, the concerns remain and it is through such mechanism as open debate and referral of question to the Court that such concerns can be judged to be founded or unfounded. I take issue that the existing body of law tackles the enforcement issue in an effective and balanced manner. I evidence this by the many proposed changes to the existing body of law put forward by the Commission were the Commission states that these changes are required to, amongst other things, tackles enforcement issues. My teenage acquaintances would call this a brain-fart moment in your argument, I would call it a flaw.

We highlight notably the increase of trade over the internet of counterfeit medicines, health products, children’s toys and other products that are not in conformity with EU health, safety and consumer laws which must be tackled. In addition, ACTA introduces the possibility for voluntary agreements between private parties to jointly work together in the fight against counterfeiting and piracy over the internet.

An ACTA-like agreement could be arranged to counter the negatives you mention above, but from the information available to me, ACTA as it stands concerns me. My default position is “No” until fully convinced ACTA is the right tool for the job.

Rejecting the wrong tool for the job would send a message to the world that the EU is a serious and wise place to do business with, with serious and wise leaders, as would accepting the right tool for the right job.

The European Parliament needs to be convinced that ACTA is the right tool for the right job, it’s default position until convinced, as with all Acquis and Treaties, must be “No”.

I do trust that the European Parliament will organize their debate to ensure that a fair, fact-based and thorough examination of ACTA will be carried out. I believe the European Parliament will set an example to the world regarding fair, fact-based and thorough examination of ACTA, something I think has been evidencially missing thus far.

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