Fiction...and ACTA FACTS

About the Internet

Fiction: ACTA encourages the targeting of technical intermediaries to be forced to remove material from the Internet, something that presently requires a court order...

FACT: ACTA includes no requirements whatsoever for intermediaries to remove material from the Internet. (Sec. 5)

Fiction: ACTA encourages (art. 27.3 and 27.4) measures that can in many ways involve a form of monitoring of individual's use of the Internet...

FACT: ACTA clearly does not require such measures (i.e., the possibility of cooperative efforts by industry or disclosure of subscriber information), but it does call on parties to take privacy and free expression into consideration. For example, while ACTA does not require disclosure of subscriber identities (it says parties “may” do so), it requires such procedures to preserve freedom of expression, fair process, and privacy. (Arts. 27.3 and 27.4)

Fiction: ACTA can lead to the recording of personal data of Internet users (as they are defined by Art 2 of the Data Protection Directive 95/4/EC)...

FACT: ACTA is very protective of privacy; the word “privacy” occurs six times, including in the internet context, and it includes a savings clause for “laws protecting privacy rights.” (Art. 4.1)

Fiction: ACTA jeopardises the multi-stakeholder process in Internet governance that allowed its success...

FACT: ACTA expressly seeks not to duplicate existing international processes (Art.36) for internet governance or any other matter.

Fiction: ACTA paves the way for a fragmentation of the Internet...

FACT: ACTA stabilizes expectations across multiple jurisdictions about rule of law and respect for rights and freedoms online.

About Access to Medicines and Patents

Fiction: ACTA could affect the whole supply chain of medicines in developing countries (third party liability can include the whole generic supply chain)...

FACT: Removing counterfeit medicines is good for supply chains and patients alike.

Fiction: ACTA targets transit goods which creates an untenable situation from the point of view of the trade rules...

FACT: Stopping counterfeits in transit (which ACTA says governments “may” do but does not require) helps to protect the public before potentially dangerous fakes reach consumers in Europe or elsewhere.

Fiction: ACTA allows countries to rely on customs officials to perform complex adjudications on IPR issues at the border that they cannot properly exert (such as patents)...

FACT: ACTA expressly excludes patents from the border enforcement obligations. (fn. 5) It further states that determinations as to infringement are to be made by “competent authorities” which expressly includes courts, or in some systems (such as the US) administrative authorities (Art. 16).

Fiction: ACTA will have a chilling effect on generic competition, and therefore consequences on access to medicines...

FACT: Generics are not counterfeits; nothing in the ACTA interferes with lawful generics that are widely used and traded under existing EU laws that ACTA will not alter.

Fiction: ACTA imposes stronger restrictions on the trade in seeds which will threaten the future biodiversity and further the corporate cartelisation of the food supply....

FACT: ACTA has nothing to do with seeds; seeds are not mentioned in the agreement, and to the extent that seeds are patentable, the agreement imposes no civil, criminal, or border enforcement obligations as to patents.

About Fundamental Principles, Rights, Data Protection and Freedom

Fiction: ACTA threatens the protection of personal data (art 27.4), which in the case of dissidents, journalists, etc. opens the door to possible threats and repression...

FACT: ACTA is the first agreement to recognize privacy in the context of online IP enforcement, and furthermore explicitly provides that nothing in the agreement requires parties to disclose information “contrary to … laws protecting privacy rights” (Art. 4.1) and calls on governments to prevent abuses (Art.6).

Fiction: ACTA never mentions fundamental rights, when it clearly could jeopardise some of them...

FACT: ACTA does mention fundamental rights; in fact it is the first and only international agreement to explicitly provide that enforcement of intellectual property rights in the context of the Internet “shall be implemented in a manner that … preserves fundamental principles such as freedom of expression, fair process, and privacy.” (Art 27.2)

Fiction: ACTA encourages (art. 27.3 and 27.4) measures that can in many ways involve a form of monitoring of individual's use of the Internet...

FACT: ACTA clearly does not require such measures (i.e., the possibility of cooperative efforts by industry or disclosure of subscriber information), but it does call on parties to take privacy and free expression into consideration. For example, while ACTA does not require disclosure of subscriber identities (it says parties “may” do so), it requires such procedures to preserve freedom of expression, fair process, and privacy. (Arts. 27.3 and 27.4)

Fiction: ACTA can lead to the recording of personal data of Internet users (as they are defined by Art 2 of the Data Protection Directive 95/4/EC)...

FACT: ACTA is very protective of privacy; the word “privacy” occurs six times, including in the internet context, and it includes a savings clause for “laws protecting privacy rights.” (Art. 4.1)

Fiction: ACTA is a breach by corporate action to the right of privacy, to data protection, and to the confidentiality of communications, protected by Art 8 of the European Convention on Human Rights and art 7 and 8 of the Charter of Fundamental Rights of the EU...

FACT: Again, ACTA is very protective of privacy and has a savings clause for laws protecting privacy rights. (Art. 4.1)

Fiction: ACTA endangers freedom of expression...

FACT: ACTA is a victory for freedom of expression, marking the first and only international agreement to explicitly provide that enforcement of intellectual property rights in the context of the Internet “shall be implemented in a manner that … preserves fundamental principles such as freedom of expression, fair process, and privacy.”

Fiction: ACTA does not guarantee fair trials...

FACT: ACTA expressly requires that enforcement procedures “shall be fair and equitable, and shall provide for the rights of all participants subject to such procedures to be appropriately protected.” (Art. 6)

About Transparency and Governance

Fiction: ACTA is bypassing international fora, such as WIPO and WTO, which is particularly unreasonable considering the magnitude of the issues it is dealing with...

FACT: A core goal of ACTA is to be “supportive of international enforcement work and cooperation conducted within relevant international organizations” (p.E-1) and to avoid duplication of any other international effort (Art. 36).

Fiction: ACTA was negotiated in a totally non transparent way, which is unacceptable considering the impact the agreement may/could have on citizens...

FACT: Texts of ACTA were made fully public for more than 17 months before any government signed the agreement.

Fiction: ACTA establishes the ACTA committee in Article 36 as its own governing body which could lead to amendments of the agreement without any democratic control...

FACT: Any change to the agreement requires consent of all the democratically-elected governments that are parties to it. (Art. 42)

Fiction: ACTA encourages a climate of relegation of the concerns of the public and of public interests that is counterproductive...

FACT: ACTA encourages a climate of rule of law in which both freedoms and rights are respected, and the public is protected from potentially harmful counterfeit products.

Fiction: ACTA can lead to the criminalisation of not-for-profit sharing...

FACT: The criminal provisions of ACTA cover “commercial scale” activities defined as being “carried out as commercial activities for direct or indirect economic or commercial advantage.” (Art. 23)

Fiction: ACTA will have a high cost of maintenance, which in itself is questionable from the point of view of government expenditure, especially in the context of the current economic crisis

FACT: ACTA imposes no fees or fiscal burdens on parties, and establishes no new international organization, no physical structure, not even a website.

Fiction: ACTA is not legally binding in the US while it will be in EU if ratified...

FACT: The legal advisor at the U.S. Department of State confirmed in writing to a Member of the U.S. Senate in March 2012 that the ACTA “is a legally binding international agreement” that “will impose obligations on the United States that are governed by international law.”

Other

Fiction: ACTA imposes liability rules that will reduce the flexibilities of European countries regarding limitation to remedies allowed by the TRIPS agreement to the disadvantage of EU companies, and particularly SMEs...

FACT: Intellectual property rights are the lifeblood of many small businesses. Whether those rights are infringed is a matter of national law; ACTA only serves to confirm that businesses of all sizes and individuals will have access to enforcement tools to protect those rights.

Fiction: ACTA leaves key terms undefined and open to interpretation ("commercial scale", "aiding and abetting", etc)...

FACT: ACTA has two pages of definitions, and brings greater clarity to concepts like “commercial scale” than has existed previously.

Fiction: ACTA imposes criminal sanctions (for "aiding and abetting") that are highly problematic...

FACT: There is nothing problematic about liability for accomplices, also known as aiders and abettors; this is an existing feature of the criminal laws of all EU Member States and ACTA signatories..

Fiction: ACTA favours assumption about infringement, but public action cannot be taken based on assumption and biased information given by the industry...

FACT: ACTA again requires fair and equitable procedures, and in no way permits guilt or liability to be assumed or changes any aspect of EU law in that regard.

Fiction: ACTA creates uncertainty for SMEs in ICT sectors that puts them at risk...

FACT: ACTA enhances certainty that SME IP rights can be protected, and further enhances certainty with a “no mandate” provision for designers of ICT products. (fn15)

Fiction: ACTA allows statutory damages which opens up for litigation and risk of large and out of proportion payments...

FACT: Statutory damages are already allowed, but not required, under the WTO TRIPS Agreement. ACTA changes nothing in that regard.

Fiction: ACTA gives increasing power to large rights holders against smaller ones and SMEs...

FACT: ACTA does nothing to change the principle that all persons are equal before the law, and expressly requires that enforcement procedures “shall be fair and equitable, and shall provide for the rights of all participants subject to such procedures to be appropriately protected.” (Art. 6)

Fiction: ACTA raises serious competition problems...

FACT: ACTA calls for “preserving legitimate competition” in industry cooperative efforts (Art. 27), stipulates that IP enforcement procedures “shall be applied in such a manner so as … to provide for safeguards against their abuse,” (Art. 6.1) and carries forward related principles of the TRIPS Agreement (Art. 2.3).

Fiction: ACTA weakens SMEs and their capacity to take part in innovation...

FACT: ACTA does no such thing; IP is a key asset for European and all other SMEs around the world..

Fiction: ACTA is far from being limited to counterfeiting, contrary to the impression that the name of the agreement gives...

FACT: The scope of ACTA is very clear in the text of the Agreement, and is focused on counterfeiting and piracy.

Fiction: ACTA is misleading for policy makers, creating a hodgepodge, lumping together of notions that are different and rights that should not be treated the same way...

FACT: ACTA stabilizes expectations across multiple jurisdictions about rule of law and respect for rights and freedoms online.

Fiction: ACTA mandates ex officio action at a lower standard of proof than TRIPS, such as ex officio border seizure...

FACT: “Ex officio” action means that border officials – who are currently powerless to stop trademark counterfeiting in some jurisdictions outside the EU – should be empowered to act, for example to protect the public against potentially dangerous counterfeit toothpaste, auto parts, semiconductors, or dozens of other counterfeit and pirated products. All such actions are subject to review and the protection of defendants’ rights.

Fiction: ACTA can potentially greatly expand the number of cases of trademark misuse: one could meet the ACTA definition of a crime by intentionally importing a good with a counterfeit label, even if that person did not intentionally create or use the counterfeit label itself...

FACT: ACTA provisions on labels prevent counterfeiters from avoiding liability by shipping fake labels separately. ACTA also stipulates that IP enforcement procedures “shall be applied in such a manner so as … to provide for safeguards against their abuse.”