Trademark Lobby Wants To Help European Court of Justice Forget About EU Citizens' Rights

from the is-that-the-smell-of-panic? dept

It was only yesterday that the European Commissioner Karel de Gucht made the surprise announcement that the European Commission would be referring ACTA to the European Court of Justice (ECJ) "to assess whether ACTA is incompatible -- in any way -- with the EU's fundamental rights and freedoms." Just a few hours after that, there are already signs of panic among ACTA's supporters that the treaty may indeed be incompatible -- and thus dead in the water as far as the European Union is concerned.

Here, for example, is a press release from the International Trademark Association (INTA), in which it makes an extraordinary offer:

the International Trademark Association (INTA) stands ready to provide any assistance to the Court or other interested parties in order to highlight the positive effects the trade agreement will have on the EU, its economy and its citizens.

The referral provides an opportunity for interested parties to continue the discussions based on ACTA's text itself, and not the heightened sense of mistrust and misinformation that has proliferated in online conversations.

This is wrong on just about every count. For a start, there have still been no "discussions" about ACTA, despite the fact that public interest groups have been requesting them for years. And is it any wonder if there is a "heightened sense of mistrust" in online conversations if the governments negotiating ACTA have consistently refused to make key information available to the public?

But most of all it's wrong because the referral to the ECJ is emphatically not an opportunity to have a general chat about ACTA: it's for the EU's most senior judges to consider in detail whether the treaty as negotiated is compatible with Europe's existing laws -- not something a trademark association can contribute much to.

In particular, those judges will be looking at possible incompatibilities with the EU's "fundamental rights and freedoms." But that, of course, is the last thing INTA wants the judges to think about:

INTA hopes that the European Court of Justice will make a considered and quick assessment of ACTA, acknowledge the serious threats that counterfeiting and piracy pose for the EU and provide the necessary clarity to pave the way for consent to the Treaty by the European Parliament and ratification by Member States.

Counterfeiting and piracy are on the rise and constitute serious threats to consumers, legitimate businesses and innovators. ACTA is instrumental for tackling these issues

How the judges are supposed to make an assessment that is both "considered" and "quick" is something the press release doesn't make clear. But leaving that aside, together with the fact that the referral is purely about rights and freedoms, not commercial considerations, this does highlight an important, if obvious, point: that the principal justification for ACTA remains that it will tackle counterfeiting effectively. But will it?

The European Commission has put together a document explaining the rationale for ACTA that contains the following claim:

As Europe is losing billions of Euros annually through counterfeit goods flooding our markets, protecting Intellectual Property Rights [with ACTA] means protecting jobs in the EU.

But as I have explored elsewhere at some length, that makes no sense. According to the EU's own figures, 99% of those counterfeit goods entering Europe come from countries that are not signatory to ACTA. The treaty will therefore have no effect on those counterfeits in their countries of manufacture. And once they get to the EU, fake goods can be dealt with using existing EU laws. ACTA will make no difference because, as we have been told repeatedly by the Commission, the treaty changes nothing in Europe. Thus, ACTA will not help tackle that flood of counterfeits inside the EU, nor will it protect jobs there.

Interestingly, when he announced the referral of the treaty to the ECJ, de Gucht used a slightly different argument about fake goods to justify the ratification of ACTA:

Intellectual property is Europe’s main raw material, but the problem is that we currently struggle to protect it outside the European Union. This hurts our companies, destroys jobs and harms our economies. This is where ACTA will change something for all of us - as it will help protect jobs that are currently lost because counterfeited and pirated goods worth 200 billion Euros are floating around on the world markets.

But once more, what this skates over is the fact that ACTA will only have any impact on the countries that have signed it -- others, like China, will be able to carry on as before. So ACTA will only affect a portion of the "counterfeited and pirated goods ... floating around on the world market" -- those that are being offered in ACTA countries.

The main signatories outside the EU are Australia, Canada, Japan, New Zealand, South Korea, Switzerland and the US, all of which already have relatively stringent laws against counterfeit goods. So that means that the only places where ACTA might have some effect are Mexico and Morocco, which may be obliged to tighten up their anti-counterfeiting laws. But that on its own will achieve little: as with the counterfeits "flooding" Europe, ACTA will have almost no effect on those "floating around on the world markets."

So not only is INTA misguided in trying to divert the conversation away from the key issue of the EU's fundamental rights and freedoms, its principal argument in favor of ACTA -- that it will tackle counterfeiting in Europe -- just doesn't hold up. Which leaves us with INTA's parting shot:

it is imperative that the EU continues to protect its citizens and uphold its status as a responsible trading partner by joining the other negotiating parties in the international effort to fight counterfeiting and piracy.

In other words, if you decide not to ratify ACTA because it undermines civil liberties and doesn't tackle counterfeiting, we'll call you "irresponsible" and other rude names.

Yeah, that'll work...

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Filed Under: acta, eu, eu court of justice, karel de gucht, trademarks
Companies: inta

ACTA Approval On Hold While EU Commission Asks EU Court Of Justice To Weigh In

from the this-could-be-interesting dept

It appears that ACTA's main political backers, the EU Commission, have finally realized that they were increasingly in trouble in terms of actually getting ACTA ratified. The EU's main negotiator on ACTA, Karel De Gucht has now said that the Commission is going to ask the EU Court of Justice to weigh in on ACTA:

In recent weeks, the ratification process of ACTA has triggered a Europe-wide debate on ACTA, the freedom of the internet and the importance of protecting Europe’s Intellectual Property for our economies.

But let me be very clear: I share people’s concern for these fundamental freedoms. I welcome that people have voiced their concerns so actively – especially over the freedom of the internet. And I also understand that there is uncertainty on what ACTA will really mean for these key issues at the end of the day.

So I believe that putting ACTA before the European Court of Justice is a needed step. This debate must be based upon facts and not upon the misinformation or rumour that has dominated social media sites and blogs in recent weeks.

This could get interesting. As we've noted in recent weeks, the EU Court of Justice has actually been pretty good lately in expressing concerns about overbroad copyright enforcement.

Of course, other parts of De Gucht's statement are pretty questionable. He talks about how the EU Council "adopted ACTA unanimously" leaving out that they did so by hiding it in an agriculture and fisheries meeting. He talks about how ACTA "will not change anything in the European Union" but is merely about "getting other countries to adopt" stricter laws. However, some EU countries have already noted that they would have to change their laws to comply with ACTA.

Either way, it will be worth following the specifics of exactly what the EU Court of Justice is asked to review and how the process works.

Filed Under: acta, eu, eu court of justice, karel de gucht

EU Commissioner Asks Big Copyright To Increase Their Lobbying Efforts For More Draconian Copyright Law

from the of-course-he-does dept

EU Commissioner Karel de Gucht has been the EU's main supporter behind ACTA. de Gucht was caught lying about ACTA last year to get it approved (telling EU members that ACTA fit under existing laws, and only later admitting some members might have to change their laws). He also refused to turn over some important documents requested by an EU Parliament member concerning ACTA, claiming that (contrary to what the law says) as long as he answered questions, he didn't have to turn over the documents.

So it probably comes as little surprise that, in a recent speech about intellectual property issues in Europe, he directly appealed to copyright holders to increase their lobbying, because those darn critics of stronger copyright apparently are speaking up too much:

I would like to call upon you to support our efforts to improve and implement IPR regimes in a more active manner. The European Commission defends your interests by promoting the development of effective IP systems, within the EU and also in third countries. However, we are increasingly faced with loud voices that come out against IP for many different reasons, often unfounded. We need you to help us to help you by enlarging the debate.

This is pretty funny. The debate has been totally and completely owned by those in favor of stricter, more draconian copyright law -- contrary to almost all evidence on the best levels of intellectual property rules and enforcement. The critics simply don't get heard at all.

Filed Under: copyright, eu, karel de gucht, lobbying

EU's ACTA Champion Rejects European Parliament Member's Request For ACTA Documents

from the more-secrecy dept

Even with ACTA supposedly in a "final" state, it appears that the negotiators just can't resist keeping up their level of stifling secrecy. Glyn Moody points us to the news that the EU's main backer of ACTA, Commissioner Karel De Gucht, has refused to turn over some "preparatory documents" concerning ACTA that were requested by European Parliament Member Francoise Castex. As the article notes, the European Commission is required to turn over such documents, as per the Vienna Convention, but De Gucht apparently has a different interpretation of all of that, saying that as long as he answers questions by MEPs, he has no obligation to turn over the documents.

It's really quite stunning how tone deaf ACTA supporters are on these issues. People have been asking for a modicum of transparency on this highly questionable agreement, and the response has been to be even more secretive. Of course, all this does is highlight that they know they're pushing an industry agenda, and they're ashamed of it. If you actually were putting together a proposal that benefited everyday citizens, they wouldn't be hiding all the details.

Filed Under: acta, karel de gucht, secrecy, transparency

EU: ACTA Is A Binding Treaty; US: ACTA Is Neither Binding, Nor A Treaty

from the funny-how-that-works dept

We've noted in the past how the US government (mainly via the USTR) has worked hard to try to play down the importance of ACTA to its critics (while, simultaneously, playing up how important it is to various lobbyists). For example, after years of promising that ACTA wouldn't change any US laws, the fact that the US does not actually comply with everything in ACTA represents a problem. The USTR gets around this by saying that we can just ignore the parts that don't match up with US law. Also, there's the whole lie about how ACTA is not a treaty. Oh no no no. According to US officials, ACTA is merely an "executive agreement." Of course, if you talk to legal experts, they'll point out that the only real difference between a treaty and an executive agreement is whether or not the Senate has any say in approving it. Making it an executive agreement is just a ploy to avoid Senate hearings. It also raises serious constitutional questions, since the Executive branch of the US government has no mandate to approve such things.

But, to summarize: according to the US, ACTA is not binding in that it can ignore the parts it doesn't like, and it's not a treaty. Got it? Not binding. Not a treaty.

Okay, let's jump over to Europe. A few months back, we had noted that the EU's Commissioner for Trade, Karel De Gucht, who, more or less, was in charge of the EU's position on ACTA, insisted that it was a treaty. And the latest news is that, in response to a question from the EU Parliament's Francoise Castex, De Gucht has also said that ACTA is binding:

The Anti-Counterfeiting Trade Agreement (ACTA) is a binding international agreement on all its parties, as defined and subject to the rules of the Vienna Convention on the Law of Treaties (1969).

Apparently, MEP Castex sent the question about this way back at the beginning of November. The delay in response is allegedly due to De Gucht begging Castex to withdraw the question, perhaps knowing that the answer was going to get him in trouble.

So, if you're playing along with the home game, the EU says that ACTA is a binding treaty. The US says it's neither binding, nor a treaty.

Kinda makes you wonder what they spent so much time negotiating in secret, doesn't it, when they can't even agree on what the document is about.

Filed Under: acta, executive agreement, karel de gucht, treaty, us, ustr

EU's Main ACTA Supporter Caught Lying About ACTA

from the and-this-shocks-anyone? dept

As a few folks have submitted, EU Commissioner for Trade, Karel De Gucht -- the main EU politician backing ACTA -- has been caught lying about ACTA. As you may recall, the EU Parliament was quite skeptical of ACTA for quite some time. However, De Gucht convinced the EU Parliament to support ACTA by claiming nothing in ACTA would impact penal enforcement of intellectual property rules, suggesting that it fully complied with existing rules. The only problem? Well, this was a lie. But it was a lie of omission. De Gucht has now admitted that some countries may have to change their local laws to comply with ACTA, but tried to defend the earlier statements by saying since there are no uniform EU rules on penal enforcement for IP, it was technically correct that no changes were required to the EU-wide rules. That seems... disingenuous, at best.

Filed Under: acta, eu, karel de gucht

As US Insists ACTA Is Not A Treaty, EU Trade Commissioner Admits It's A Treaty

from the ooooops dept

We've already posted about David Kappos' non-response to legality questions about ACTA, but at the bottom of KEI's coverage of this story there's another interesting point. ACTA supporters in the US have been bending over backwards to insist that ACTA is not a treaty. Any time anyone mentions it as a treaty in the comments here, one of the ACTA supporters among our readership will quickly admonish them for being clueless about the law and will insist that this is nothing more than an "executive agreement," which does not need Senate approval. It's one of ACTA supporters' favorite talking points. Of course, there are some serious constitutional questions about that.

However, much more telling is that many ACTA supporters will outright admit it's a treaty. We already noted that the Business Software Alliance (BSA) did just that a few weeks ago (and also falsely claimed it had already been signed by 37 countries). However, much more telling is that the EU's Commissioner for Trade, Karel De Gucht, has also admitted that the document is really a treaty. Apparently in a communication to the EU Parliament, De Gucht specifically and formally noted three times that ACTA is, in fact, a treaty. I can't wait for the responses in our comments about how it's not a treaty now.

Filed Under: acta, executive agreement, karel de gucht, treaty