Christian Engström, Pirate MEP

21 december 2011

ACTA is Borderline on Fundamental Rights — At Best

Postat i: ACTA,English,informationspolitik — Christian Engström @ 23:15

YouTube clip of my speech on ACTA in the JURI Committee on December 20, 2011 (8 min)

Yesterday in the Legal Affairs Committee JURI in the European Parliament, we had an exchange of views on the ACTA agreement. Last week we got a Legal Opinion on ACTA, and in particular its compatibility with European fundamental rights, from the parliament’s Legal Service. This was the background for the discussion.

The first one to speak was French MEP Marielle Gallo, who is the rapporteur for the report that the JURI committee will be writing, and who is very much in favor of ACTA.

Then it was my turn. This is what I said when I was given the floor:

Thank you.

First of all, I’d like to thank the Committee for the decision yesterday to make the Legal Opinion public. I think that was a very good and very sensible decision, and as the chairman pointed out, it is compatible not only with the Cashman report, but also with the Turcu case from the ECJ. So that is a very good thing.

Then, looking at this Legal Opinion, I think it is a very interesting Opinion, because it confirms many of the concerns that we have raised about the ACTA agreement, and in particular whether it is compatible with fundamental rights in the European Union and elsewhere in the world.

If we look at paragraph 40 of the Legal Opinion, the language is extremely guarded in this Opinion. It says in subparagraph (d):

It appears that the Agreement per se does not impose any obligation on the Union that is manifestly incompatible with fundamental rights.”

Now, if I ever listened to guarded legal language, that was it.

And the Opinion as a whole explains why it is, quite rightly, so guarded. It points out that very, very much depends on how this treaty is actually implemented in Member State laws or in Directives.

For instance, the issue of proportionality is very important, and is a fundamental right. All laws, and all punishments etc., have to be proportionate.

According to the ACTA agreement, if somebody does make illegal copies and downloads things illegally, damages should be calculated on the retail price or market value.

Now, as an example: A two-terabyte disk can hold roughly half a million songs. If you calculate that, at the market price of 1 euro per song, which is quite normal, then the damages for having a 2 TB disk full of music would be half a million euro.

Would that be proportionate or not? This is not an extreme example, this is something that lots of teenagers do. Is it really proportionate that the family would have to sell their house and all their possessions if they were found out?

This Legal Opinion seems to be of the opinion that ”well, yes, perhaps it could be”. The lawyers who wrote the Assessment of ACTA for the INTA Committee in June this year, were of the opposite opinion. They said that this raises real concerns about whether it is proportionate or not.

Like I said in the beginning, we can see from the language of the Legal Opinion that the ACTA agreement is at the very least borderline when it comes to respecting fundamental rights. And here we have a case where we have opposing opinions, from quite serious and qualified lawyers on both sides.

The ones who wrote the INTA Assessment are saying that ”no,this is probably not proportionate”, whereas the Legal Service is suggesting that ”maybe it is”.

I think this strengthens the case for what we have been asking for, and what we are asking for: That we should send the ACTA agreement to the European Court of Justice, to get clear and proper guidance as to how it should be implemented — if it can be implemented in a way that is compatible with fundamental rights and the acquis.

There are other things that are very interesting in this Opinion as well. In paragraph 32, it mentions ”three-strikes”, and says that three-strikes was on the table during the negotiations, but then it was removed from the negotiations.

This is very interesting, because almost exactly a year ago, on December 22, I had put a written question to the Commission, asking if three-strikes had in fact been discussed. The Commission then said that ”at no stage in the ACTA negotiations were there any proposals on the table about the direct or indirect introduction of compulsory three-strikes or graduated response systems”.

But now the Legal Opinion here says the opposite, which is in conformity with the leaks of previous draft agreements. The problem is that those draft agreements have never been released officially, so we can’t actually know who is right or wrong here.

To me, it makes sense to have all those draft agreements made public officially, because, as the Legal Service points out, the problem with the ACTA agreement as it stands now is that it is very vague. It is not at all obvious how various things should be interpreted.

One of the core aspects of the ACTA agreement is that it talks about ”cooperation” between rightholders, internet service providers, and the business community in general. In the early drafts, it was pretty clear what that cooperation meant, because then, ”three-strikes” was mentioned in a footnote, as an example of it. But then that was removed, so it becomes a bit unclear what that cooperation is supposed to mean.

And that brings us to another problem. Ms Gallo mentioned China, quite rightly, because indeed, when we are discussing whether this is a worthwhile agreement or not: It is supposed to be an anti-counterfeiting agreement, and China is not one of the signatories. Yes, one can very much ask: Is this worthwhile at all?

But going beyond that, when we are talking about China: This kind of cooperation, with private companies cooperating under the auspices of the government, is one of the big problems for European and Western companies wanting to enter into China and offer services on the internet.

So far, we have been able to at least criticize China for doing that. But if we sign an agreement actually encouraging that kind of cooperation, we would lose all our moral high ground in relation to China. I think that could be very damaging to European companies trying to enter into that market.

And as I said: What is the point of an anti-counterfeiting agreement that doesn’t include China?

To conclude: I think this Legal Opinion confirms the fact that ACTA is at best a borderline case. It depends very much on how it would be implemented, if it actually would be compatible with fundamental rights. So, I think there is a very strong case for asking for more authoritative guidance from the ECJ before we even consider giving consent to signing this agreement.

Thank you.

Also read the account of the committee meeting by by David Hammerstein at the TransAtlantic Consumer Dialogue TACD

…………

Others on the subject: FFII, Marie Axelsson, Hax (filmlänk), Hax (om att dokumenten släpptes fria),

Video of the entire JURI meeting, ACTA debate starts at 11.31

8 kommentarer

  1. [...] is a good thing for all of us. You can read more about it on Engströms blog, where he talks about ACTA being borderline on fundamental rights, at best. I hope that ACTA can be trailed in the European [...]

    Pingback av Now is the time to act on ACTA and SOPA – maloki — 21 december 2011 @ 23:41

  2. This whole ACTA thing is unfortunate. When the Nordic passport union was formed in the 1950s, it was done so by the concurrent decisions by the respective governments. There was no need for international binding agreements or treaties to actually abolish passport requirements between countries. Why is it then necessary for such simple things as combating counterfeit goods?

    What the negotiations should have focused on was to agree on a set of concurrent decisions to implement stricter controls in accordance with the law of each country. Not only would there be any need to understand and ratifying an agreement, it would by necessity have been a much more concrete set of actions.

    These ACTA negotiations have taken years, and it will take years to implement them. If you’re really worried about counterfeiting, then it is a hopelessly bad approach.

    The vagueness alone should be reason enough to but ACTA in the trash bin. We are not helped at all by forming new institutions or regulations that makes no sense. The unclarity regarding the ACTA committee (ACTA chapter 5) to be formed, and its decision making competence is where the most attention is warranted. Does it circumvent parliamentary scrutiny by actually moving the decisions about copyright and counterfeiting legislation to an international body in which the governments and the EU-commission can introduce new international binding agreements which turns in to legislation by the back door?

    Is the EU-parliament comfortable with releasing that power to non-elected officials? I wouldn’t be.

    Kommentar av Johan Tjäder — 22 december 2011 @ 10:55

  3. ”Now, as an example: A two-terabyte disk can hold roughly half a million songs. If you calculate that, at the market price of 1 euro per song, which is quite normal, then the damages for having a 2 TB disk full of music would be half a million euro.

    Would that be proportionate or not? This is not an extreme example, this is something that lots of teenagers do. Is it really proportionate that the family would have to sell their house and all their possessions if they were found out?”

    Of course, it is totally unrealistic. It’s so wierd that hopefully no one will ever respect these kinds of legislations – for as long as they exist. The copyright monopoly will go to history as protectionist, conservative egoists just as the guilds monopoly on physically produced goods did on the edge (initial phase) of the industrial revolution. These extremists are just as dangerous to society as the businesses who once tried to thwart the industrial revolution!

    What kind of a world would we live in if those pre-industrial elites had won out.. back in the 1700s and 1800s? We wouldn’t have any industrialized countries at all! Who knows what the costs for thwarting the internet and IT-revolution today would be, say 50 years in the future? Our grand-children would never forgive us…

    Kommentar av ForskarGurra — 25 december 2011 @ 23:55

  4. I don’t want to be mean but you really have a big weakness as a politician and that is your rhetoric and speech.

    Kommentar av Anonym — 27 december 2011 @ 11:14

  5. Att skicka ärendet till EU-domstolen kan vara ett dubbeleggat svärd. Se här ett exempel på hur det kan gå när Domstolen ska börja använda de nyinskrivna mänskliga rättigheterna. (Storbönders rätt att slippa spridning av hur mycket de fått i EU-bidrag ansågs som en mänsklig rättighet.

    http://www.eukritik.se/blogg/?p=204

    anders

    Kommentar av onkel a — 30 december 2011 @ 0:21

  6. [...] On December 19, the European Parliament’s Legal Affairs Committee voted to make the EU Legal Service Opinion on ACTA publicly available. [Click here for the full Opinion].  At the subsequent hearing on ACTA, Swedish Pirate Party MEP Christian Engström argued that “this Legal Opinion confirms the fact that ACTA is at best a borderline case. It depends very much on how it would be implemented, if it actually would be compatible with fundamental rights. So, I think there is a very strong case for asking for more authoritative guidance from the ECJ before we even consider giving consent to signing this agreement.” Click here for MEP Engström’s full floor statement. [...]

    Pingback av Release of EU Legal Service Opinion on ACTA — 10 januari 2012 @ 18:14

  7. [...] MEP Christian Engström on ACTA [...]

    Pingback av ACTA update « The Science of Destruction — 27 januari 2012 @ 0:09

  8. [...] On December 19, the European Parliament’s Legal Affairs Committee voted to make the EU Legal Service Opinion on ACTA publicly available. [Click here for the full Opinion].  At the subsequent hearing on ACTA, Swedish Pirate Party MEP Christian Engström argued that “this Legal Opinion confirms the fact that ACTA is at best a borderline case. It depends very much on how it would be implemented, if it actually would be compatible with fundamental rights. So, I think there is a very strong case for asking for more authoritative guidance from the ECJ before we even consider giving consent to signing this agreement.” Click here for MEP Engström’s full floor statement. [...]

    Pingback av January 9, 2012 — 6 februari 2012 @ 22:31


RSS-flöde för kommentarer till det här inlägget.

Rubric-temat Blogga med WordPress.com.

Följ

Få meddelanden om nya inlägg via e-post.

Gör sällskap med 1 866 andra följare

%d bloggers like this: