As reported by Reuters, representatives of Governments of eight nations, namely Japan, the United States, Australia, New Zealand, Canada, Morocco, South Korea and Singapore have signed ACTA on October 01, 2011 in Tokyo. A number of signatories involved in ACTA negotiations, including the European Union, abstained. This does, however, not mean that EU dissociate themselves from the Agreement – there are merely formal obstacles which have to be removed before a signature on behalf of the EU can be given. As reported earlier on this blog, preparatory work of EU Council is underway to sign and ratify ACTA. For further background, see also here.

The US Chamber of Commerce and the Software and Information Industry Association (SIIA) applaud signing of the Agreement. Nevertheless, ACTA is also in the focus of critics. With regard to the EU, here is a first level of more formal problems concerning the contested full compatibility of ACTA with the EU Acquis communautaire or Community acquis sometimes called the EU acquis, and often shortened to acquis, is the accumulated legislation, legal acts, court decisions which constitute the body of European Union law. The term is French: acquis meaning “that which has been agreed upon”, and communautaire meaning “of the community”. For details of that discussion, see my previous blog post here.

But beyond those formal matters there are also substantial problems with ACTA in the EU. Rumours say thet ACTA might be voted in the European Parliament later this year in December. At least the parliamentary group of the Greens / European Free Alliance has announced to oppose ratification of ACTA and to refer the Agreement to the Court of Justice of the European Union in order to get a decision as to whether or not it is compatible with EU law.

Moreover, the parliamentary group of the Greens in the European Parliament today has published a new study on ACTA authored by Douwe Korff and Ian Brown, titled Opinion on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights.

Douwe Korff is Professor of International Law at London Metropolitan University, London, UK, and a leading European human rights and data protection expert. He has taught the European Convention on Human Rights at various Dutch and UK universities for more than twenty-five years, has extensive experience in the European Court of Human Rights, and has written many reports on human rights issues for the Council of Europe, the European Union and the Organisation for Security and Cooperation in Europe. Ian Brown is Senior Research Fellow at the Oxford Internet Institute of the University of Oxford, and a leading expert on public policy issues around information and the Internet, particularly privacy, copyright and e-democracy. He also works in the more technical fields of information security, networking and healthcare informatics.

The final conclusion of Douwe Korff and Ian Brown is as follows:

The right to freedom of expression and information:

Re Application of ACTA to trivial or small-scale, not-for-profit technical infringements of IP rights, and to the dissemination of IP-protected information without the agreement of the right holder where this is justified on higher public interest grounds:

[...] In our opinion, an explicit de minimis rule and an explicit public interest defence are the minimum that are required to bring Article 23 in accordance with the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights (CFR).

Re Application of ACTA to evasion of Digital Rights Management systems:

ACTA too easily assumes that right holders’ rights always trump user rights, that right holders can impose whatever kinds of DRM restrictions they like, and that these are always lawful in terms of contract- and consumer law, no matter how draconian. In our opinion, in specific contexts, this will not be right, and this approach therefore unduly and disproportionally restricts access to information, or the free dissemination of information, in violation of Article 10 ECHR and Article 11 CFR.

Re “Three strikes” and extended ISP liability:

[...] In our opinion, without clear stipulations that require States that sign up to the Agreement not to allow private-sector-imposed “three strike” rules and not to impose excessive ISP liability in respect of IPR infringements, ACTA fails to ensure that it will be applied (by EU and non-EU States) in accordance with European and international human rights standards.

The right to protection of personal data:

Articles 11 and 27(4) allow for the following: · the surreptitious monitoring of the Internet use of millions of individuals without any concrete suspicion of illegality, and the systematic recording and analyses of information on their Internet use; · the disclosure of the information gleaned from such surveillance to right holders, even though it may be wildly unreliable as an indicator of illegality, without any real safeguards to ensure that only information is disclosed which seriously suggests widespread infringement by identified individuals; · on the basis of completely unclear standards (essentially, mere claims by right holders); · by judicial and “other” authorities, i.e. also by authorities that are neither independent nor impartial in these respects; · across borders, including from EU Member States with strict data protection laws to non-EU Member States with “inadequate” data protection laws (or no data protection laws at all) ; and · in proceedings to which the individuals do not have access, and in which they are not heard (inaudita altera parte). The above-mentioned suspicionless monitoring and disclosures of unreliable but sensitive personal data are incompatible with European human rights and data protection law, except under very stringent conditions, as outlined in our Opinion with reference to the Opinion of the EDPS, which include: – limiting such monitoring to “clear” cases of “major IPR infringements”, and even then only subject to a “prior check” by the relevant national data protection authority; – limiting transborder disclosures to right holders and law enforcement agencies in non-EU countries that ensure “adequate” protection of the received data, but in either case again only subject to such a “prior check”; – imposing serious checks on the validity of non-EU personal data disclosure orders, and on assurances of limiting the use of the data by the non-EU recipient to the purpose of the disclosure (which is not properly ensured by ACTA, in spite of phrases suggesting this). In our opinion, the absence of such stringent conditions in ACTA means that the Agreement in these respects is incompatible with the ECHR, the CFR, and European data protection rules.

Fair trial / due process issues related to other fundamental rights:

Re Criminal law enforcement of IPR under ACTA:

In our opinion, ACTA, by not including a de minimis exception to its compulsory and draconian enforcement regime, fails to ensure adequate protection of the right to freedom to obtain and disseminate information, the right to freedom from unreasonable search and arrest, the right to inviolability of the home, and the right to the peaceful enjoyment of one’s possessions, and thus violates those rights.

Re Civil-law enforcement of IPR under ACTA (including injunctions, provisional measures, and the awarding of damages):

In our opinion, without clear provisions stressing that injunctions should be the exception, and inaudita proceedings the high exception, and that for both, there must be strong counterbalancing safeguards to preserve the “equality of arms” in IPR enforcement proceedings, ACTA is incompatible with the “fair trial” guarantees in the ECHR and the CFR.

Re “Privatisation” of IPR law under ACTA:

Rather than contributing to the upholding of freedom of expression and due process rights by the dominant, private-sector players on the Internet, ACTA erodes the development of the Rule of Law in that realm. It encourages the regulation of human rights-sensitive matters by private entities, outside the formal frameworks, and without ensuring compliance with “off-line” human rights standards. This “privatisation” of the IPR regime therefore, in effect, deprives individuals from their right to have crucial issues of Internet freedom properly adjudicated in proceedings that meet all the requirements of Article 6 ECHR/Article 47 CFR.

In view of the opinion, ACTA tilts the balance of IPR protection manifestly unfairly towards one group of beneficiaries of the right to property, IP right holders, and unfairly against others. It equally disproportionately interferes with a range of other fundamental rights, and provides or allows for the determination of such rights in procedures that fail to allow for the taking into account of the different, competing interests, but rather, stack all the weight at one end. According to Douwe Korff and Ian Brown, this makes the entire Agreement, in our opinion, incompatible with fundamental European human rights instruments and -standards.

It is yet difficult to properly assess the impact that both expert opinions, the one by Directorate-General for External Policies of the Union (Directorate B – Policy Dept.) as well as the other one presented above, might have when it comes to counting the votes when a  final parliamentary decision is due. On the one hand, there is some probability that other parliamentary groups  beyond the Greens will simply press ACTA ratification through. On the other hand, the growing movement behind the Pirate Party frightens all of the established parties. Not to forget that in Europe ACTA needs ratification by each and every of the EU Member States. In Germany, the Pirates not only have won seats in the Berlin City Parliament but recent polls also suggest that they might get seats in the lower chamber of the German Parliament (‘Bundestag’) after the next general elections due in 2013. There are even speculations that they might be in a coalition Government on federal level then because of traditional centre-right and centre-left coalition models might miss the required absolute majority. In view if this situation, political parties in Germany and abroad might think twice before pushing through an Agreement which has a potential to spark a popular movement against Intellectual Property, even stronger than that of the years 2000 to 2005 whereafter the Draft EU Directive on Patentability of Computer-Implemented Inventions was killed eventually.

About The Author

Axel H. Horns

German & European Patent, Trade Mark & Design Attorney

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