ACTA: Delicate matter of incompatibility with fundamental rights

Letter to the European Parliament Legal Affairs Committee
2 September 2011

Dear Members of the Legal Affairs Committee,

A new study on ACTA, commissioned by the Greens/EFA, concludes that ACTA is incompatible with fundamental European human rights instruments and -standards. [1] We believe the Parliament should ask the European Court of Justice an opinion on this delicate issue. Only the Court can decisively resolve the uncertainties.

A second Greens/EFA study concludes ACTA increases the risks and consequences of wrongful searches, seizures, lawsuits and other enforcement actions against legitimate suppliers of generic medicines. [2]

Furthermore, according to our own analysis, green innovation will partly inherit the issues in the software field. ACTA will hamper both green innovation and diffusion of green technology. [3]

Apart from compatibility with the European Convention on Human Rights, the Charter of Fundamental Rights, general principles of Union law, the Treaties, current Union laws and existing international obligations, there are more issues to address.

An important question to ask is whether ACTA will foreclose future legislative improvements in response to changes in technology or policy. In the US, Senator Wyden asked the Congressional Research Service (CRS) of the Library of Congress whether the commitments put forward in the agreement would impede legislative efforts that are currently underway. EU law is relatively new and under review, policy space is needed.

The Commission proposed a directive on orphaned works, an issue of high importance. The CRS report makes it clear that ACTA provisions are in conflict with proposed US legislation on orphaned copyrighted works. This may easily be the case in the EU as well, since the Berne Convention does not leave much room to solve the orphaned works issue. [4]

The CRS report also notes that ACTA, as an executive agreement that reportedly will not be submitted to Congress for approval, does not reduce, constrain, or otherwise impact the authority and prerogative of Congress to enact such measures that change federal law. In other words, ACTA will not be binding upon the US, while it will be binding upon the EU. This will negatively impact the EU’s flexibility and competitiveness compared to the US, especially in the light that the US has a surplus on IP trade, while the EU had a huge deficit (in 2008, US surplus 68 billion dollar, EU deficit 25 billion dollar, see table on page 35 of the INTA study). [5] Normally, countries with a deficit want more flexibility to avoid a lock in.

It is an open question why the Parliament should ratify an agreement the US President does not dare to send to Congress.

Yours sincerely,

Ante Wessels

Foundation for a Free Information Infrastructure

[1] (draft)

[2] (draft)