February 2012

Facts on ACTA

The following points address arguments that have been made by the European Commission
about ACTA's supposed harmlessness. They are available online at:https://lqdn.fr/counter_acta“ACTA is not the EU's SOPA or PIPA”
In some important ways, ACTA is worse than SOPA. ACTA is the global blueprint for
repressive laws such as SOPA.

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ACTA is the blueprint for laws such as SOPA/PIPA
While SOPA/PIPA may have been put aside for a moment, ACTA is a global agreement
negotiated outside of democratic arenas, pursuing a similar enforcement strategy, andmeant to be imposed globally.
La Quadrature article on the strategy behind ACTA▪

EU elected representatives won't be able to modify ACTA
If SOPA were to be adopted, the US Congress could amend or abrogate it. ACTA will
prevent the EU and its Member States as well as other signatories to change their
copyright and patent laws, and to fix their broken and brutal enforcement policies toadapt to the new economy of sharing.

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ACTA will lead to extra-judicial censorship measures
If ACTA is adopted, it will be possible for the entertainment industry to exert pressure
on every Internet actor under the threat of criminal sanctions for “aiding and abetting”
infringements (art.23.4) and under the guise of “cooperation” between both parties(art.27.3). ACTA also mentions “expeditious measures to deter further infringements”(art.27.1).
Under this legal framework, Internet actors will be compelled to deploy automatedblocking, filtering of communications and deletion of content online. Such measures
will inevitably restrict users' freedoms online.
Detailed analysis of ACTA's digital chapter▪

Mexican lawmakers stress the dangers of ACTA forfreedom of expression and culture
The Mexican Senate approved a resolution calling on the government not to sign theanti-counterfeiting agreement ACTA. In its conclusions, it argues that the digital
chapter could lead to privatized online censorship, with harmful effects on Net
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neutrality (and therefore freedom of expression), access to communications or accessto culture.
Resolution of the Senate of Mexico on ACTA▪

ACTA is part of the Commission's dangerous copyrightagenda
By defending this SOPA-style policy in ACTA, the Commission is paving the way for thecopyright industries' enforcement agenda, preventing any true debate on alternative torepression. This fits with the announced revision of the IPRED and eCommerce
directives.
La Quadrature's view on the EU Commission's repressive agenda“ACTAisabout
large-scale
andinfringements of intellectual property”

organisedThis is simply false, as the sanctions provided in ACTA relate even to not-for-profit
infringements.

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ACTA covers for-profit and not-for-profit infringements
ACTA modifies the scope of criminal sanctions in EU Member States, ensuring they
will be applied for cases of infringement on a “commercial scale”, defined as inducing“direct or indirect economic or commercial advantage” (art. 23.1). This term is vague,
open to interpretation, and just plainly wrong when it comes to determining the scopeof proportionate enforcement, as it does not make any distinction between commercialand non-profit infringement.
Article 23.10 of ACTA▪

Criminalization of sharing was part of the EU Commission
ACTA mandate
The Commission claims that ACTA does not target non-commercial users infringing on
copyright. Why then does the 18 July 2007 discussion paper submitted in interservice
consultation in the EU Commission for the negotiating mandate of ACTA include thecriminalisation of not-for-profit sharing by individuals? The latter explicitly refers to
the need of criminal sanctions for: “significant willful infringements without
motivation for financial gain to such an extent as to prejudicially affect the copyrightowner (e.g., internet piracy)”. This is a fundamentally flawed policy, and ACTA will
make it impossible to reform in the EU while exporting it worldwide.
EC discussion paper on ACTA negotiating mandate▪

ACTA disrespects the position of the EU Parliament oncriminal sanctions
ACTA's overbroad definition of commercial scale runs counter to the EU Parliament

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position on the IPRED 2 proposal in 2007. According to the EU Parliament, acts
“carried out by private users for personal and not-for-profit purposes” should be
excluded from criminal sanctions. ACTA contradicts this by expanding the commercial
scale definition to acts providing “indirect economic advantage”.
EDRi's analysis of ACTA's “criminal sanctions” chapter▪

ACTA will impact small and innovative market entrants
ACTA will also chill innovation in. By extending the scope of criminal sanctions for“aiding and abetting” to such “infringement on a commercial scale”, ACTA will create
legal tools threatening any actor of the Internet. Widespread social practices, like notfor-profit file-sharing between individuals, as well as editing a successful information
website or distributing innovative technological tools, could be interpreted as“commercial scale”. Access, service or hosting providers, website editors will therefore
suffer from massive legal uncertainty, making them vulnerable to litigation by theentertainment industries. They will then be forced to implement censorship measuresharming the free Internet.
EDRi's analysis of ACTA's “criminal sanctions” chapter“ACTA does not even change EU law” and “provides
adequate protections for fundamental rights”
Again, the Commission keeps arguing that ACTA does not go further than EU law, but it's
simply not true.

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On damages and border measures in particular, ACTA goesbeyond EU law
In an opinion released last year, leading European academics shows how ACTA clashes
both with EU law and with the enforcement provisions of the TRIPS Agreement which is binding for the EU - particularly on border measures, damages, commercial
scale definition and lack of safeguards.
Opinion of EU legal scholars on ACTA▪

A study requested by the European Parliament underlines
the lack of safeguards and calls on the EU Parliament to reject
ACTA
An independent study commissioned by the Directorate-General for External Policiesof the European Parliament recognizes ACTA's lack of safeguards for fundamental
rights, while underlining that it is “difficult to point to any significant advantages thatACTA provides for EU citizens beyond the existing international framework. According
to the study, “unconditional consent would be an inappropriate response from theEuropean Parliament given the issues that have been identified with ACTA as itstands”.
Study commissioned by EU Parliament on ACTA (pdf)

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European Economic & Social Committee stresses that
fundamental rights are not taken into consideration in ACTA
In an opinion criticizing the EU Commission's IPR Strategy, the European Economic andSocial Committee stress that “fundamental human rights, such as the right toinformation, health, sufficient food, the right of farmers to select seeds and the rightto culture, are not taken sufficiently into consideration” in ACTA, and that “this will
impact on future European legislation geared towards the harmonisation of Member
States' legislation.” According to the EESC, “ACTA's approach is aimed at further
strengthening the position of rights holders vis-à-vis the ‘public’, certain of whose
fundamental rights (privacy, freedom of information, secrecy of correspondence,
presumption of innocence) are becoming increasingly undermined by laws that areheavily biased in favour of content distributors.”.
Opinion of the EESC▪

ACTA will prevent needed reform of EU copyright law
Even if ACTA respected EU law, it would still not be acceptable, as it would bind thewhole Union to a plurilateral agreement that would prevent us from reforming ourcopyright and patent law. This is especially shocking at a time when many citizens andadvocacy groups are calling for a reform of these laws.
La Quadrature's proposals for the future of copyright“ACTA is needed because protecting intellectual
property is protecting EU jobs”▪

ACTA won't protect European SMEs
Geographical indications – a key point for Europe's small businesses and cultural
heritage – are mostly excluded from ACTA. The few references to geographicalindications in ACTA will have no or very little effect on third countries' national law.

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Numbers regarding job losses due to counterfeiting arebogus
The copyright lobbies have issued dozens of studies alleging that file-sharing andcounterfeiting had disastrous economic consequences. In March 2010, during thedebate at the EU Parliament on the so-called Gallo report, a “study” by TERA
consultants was sent to MEPs in order to “demonstrate” that file-sharing would resultin impressive job losses in the European Union. As usual, their methodolgy was bogus,
and their findings based on no empirical data. The Social Science Research Council– which carried out a major study on piracy - was quick to publish an document
debunking the study's findings. According to the SSRC, even if one admits that somesectors in the industry suffer losses directly because of file-sharing, the TERA study
overlooks the fact that the money not spent on, say, CDs and DVDs is simply
transferred to other activities and sectors, which potentially better contribute to EU
economic and social wealth.
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Note by the Social Sciences Research Council on “piracy and jobs in Europe” (PDF)▪

ACTA will favor big businesses over innovators andcreators
ACTA will actually hamper innovation and creativity in the EU and worldwide. Bybroadening the scope of civil and criminal sanctions and establishes new procedural
rules favouring the entertainment industries, ACTA will chill EU innovators, start ups
and venture capitals. This is especially clear when one considers ACTA's insane damage
provisions (during a trial, right holders will be able to submit their preferred form ofdamage computation)
Article 9.1 on damages in ACTA (PDF)▪

Copyright repression is costly and ineffective
The Commission keeps stepping up repression, when in many instances counterfeiting
is at its core a market failure due to the inadequacy of IPR holders' business models
and contracts. At the same time, no EU Commission initiative exists to take a positive
approach on discussing new financing models for the culture economy fit for the digitalenvironment.

“ACTA is also needed to protect our safety andhealth”▪

ACTA will do little against truly harmful counterfeiting
China, Russia, India and Brazil, countries where most of counterfeiting is produced,
are not part of ACTA, and have stated publicly that they will never be. Considering thewidespread opposition to ACTA, the agreement has lost all legitimacy on theinternational stage. It hampers the advent of a consensus worldwide to fight “real”
counterfeiting.
Statements by China, India and Brazil in TRIPS Council against ACTA▪

ACTA is a badly drafted text which takes the wrong
approach to tackling counterfeits
If protecting health and safety was really the priority, then ACTA is just a bad andoverbroad text. It mixes many types of infringement and enforcement measures, inwhich life-endangering fake products and organized crime activities are considered
together with not-for-profit activities that play a role in access to knowledge,
innovation, culture and freedom of expression.
Study on how ACTA would hamper the right to health

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“The negotiations of ACTA have been transparent”▪

Transparency was only made possible under the pressureof civil society
Contrary to the Commission's claims, transparency on ACTA was only made possible
after negotiation documents were leaked by insiders worried of ACTA's consequences.
These leaks forced the negotiators to release negotiation texts in the Spring of 2010,
more than 3 years after the beginning of the negotiations. Preparatory documents,
which are key to interpret ACTA's vague provisions, remain confidential, as most ofcontent of the EU Parliament's legal opinions on ACTA.

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ACTA is part of the international agenda of copyright,
patent and trademarks lobbies
ACTA is a direct by-product of the lobbying offensive launched in 2004 by theInternational Chamber of Commerce, presided by the then CEO of Vivendi-Universal
Jean-René Fourtou, who started the business initiative against counterfeiting(BASCAP). Fourtou's wife acted as EU Parliament rapporteur for the IPR Enforcement
Directive (IPRED) adopted the same year. It is one of the worst examples of privateinterests taking over policy-making.
Wikpedia article on BASCAP▪

ACTA bothinternational fora

bypasses

andundermines

traditional

The negotiation and implementation of ACTA bypasses legitimate internationalorganizations (WTO, WIPO) where copyright, patent and trademarks policy arediscussed. This is all the more unacceptable considering that a growing number ofcountries understand the importance of reforming these policies by breaking awayfrom blind repression.
La Quadrature article on how ACTA bypasses democracy▪

ACTA will continue to circumvent democracyIn the future, ACTA's scope could also be easily expanded through the “ACTAcommittee”. The latter will have authority to interpret and modify the agreement after
it has been ratified, and propose amendments. Such a parallel legislative process,which amounts to signing a blank check to the ACTA negotiators, would create aprecedent to durably bypassing parliaments in crucial policy-making, and isunacceptable in a democracy. This alone should justify that ACTA be rejected.
Article 36.2 of ACTA

These points are regularly updated as a collaborative document on La Quadrature's wiki:
https://lqdn.fr/counter_acta
For more information, visit www.lqdn.fr/acta

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