Myself, Coding, Ranting, and Madness

ACTA Views from MEPs

So, although I haven't yet found a way to construct my letter about Richard O'Dwyer1 2, I did follow up my views on ACTA3 4 by emailing my MEPs via WriteToThem5. Below, I give you a summary of the responses, followed by the actual emails. Most of this is really only of use for write-only memory, unless anyone wants to compare the responses they got to these - at least two are stock emails, and I strongly believe they all are.

Response Table

Original Email (Fri 27th Jan)

Dear Jean Lambert, Syed Kamall, Sarah Ludford, Mary Honeyball, Charles Tannock, Claude Moraes, Marina Yannakoudakis, and Gerard Batten, I writing to you in relation to the upcoming ratification of the Anti-Counterfeiting Trade Agreement that was recently signed by representatives of the European Union. You are undoubtedly all aware of the resignation of Kader Arif, and ongoing reaction across the Union to the treaty. This concern has grown recently in light of the case of Richard O'Dwyer, who is likely to be extradited to the United States of America for creating and profiting from a near-dumb pipe. Therefore, I'm seeking your opinions on the Agreement, and what you will be looking for in any debates in Parliament. I ask with primary reference to: - The freedom of interpretation, such as the protection and/or formalisation of 'fair use' terms; - The lack of consultation outside of interested corporations (I only have the list of cleared advisors in the US); - The freedom of information flowing through both physical and electronic boundaries; - The ability of member states to limit possible interpretations; - What extradition conditions the agreement may introduce, both between member states and also to the rest of the world. Issues like the concept of fair use are important - the much cited protest in the Polish Parliament was, noticeably, in breach of copyright itself, and the ability to derive certain types of work are important in society. The purposes of copyright, as I see it, should be focus towards branding (trademarks, etc.), and to the protection of new concepts (similar to patents). Both of these have their own set of issues, but extending the law to cover other things seems, generally, disadvantageous to progress and society as a whole. There is also a strong feeling on the internet that the Agreement could be the paving stones for something similar to SOPA and PIPA, with provisions for the immediate seizure of websites, and the monitor and control of traffic and DNS (name service) records, possibly as a analogue to the border controls section. I, unfortunately, haven't had time to pursue the full text of the Agreement, and would appreciate your views and interpretations of this kind of action. Yours sincerely, Benedict Harcourt

Syed Kamall MEP (Conservative), Tue 31st Jan

Dear Benedict, Thank you for having contacted me with regards to the Anti-Counterfeiting Trade Agreement (ACTA). As you maybe aware, representatives from EU member states have been signing off the agreement and it will now go back to the European Parliament for consent within the next two to three months. ACTA is what is known as a "mixed agreement", which means that, certain key elements such as criminal enforcement of intellectual property rights is a member state competence and will not decided at the EU level. I share some concerns being expressed over ACTA and have called, among other things, for the European Commission to be more transparent and open in its negotiations with other stakeholders. In fact, I have tabled parliamentary questions asking for clarity on this issue: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2010-0217+0+DOC+XML+V0//EN&language=EN http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2010-0726+0+DOC+XML+V0//EN&language=EN I have also asked the European Commission to confirm that ACTA is compatible with EU treaties and have asked the European Parliament's legal services whether the European Court of Justice could rule in the future that adaptations in existing EU legislation would be required if a plaintiff were to bring a case. In addition, I am about to submit a parliamentary question in conjunction with a civil society organisation that aims to clarify whether rumours on "three strike" measures restricting internet access were proposed by the parties negotiating the agreement. If this was the case, I have asked the European Commission to confirm that disconnecting end-users is not an example of the type of criminal punishment foreseen by ACTA. Nevertheless, one should be aware that nothing prevents member states from implementing their own legislation on the matter (France's "HADOPI" law being a notorious example). I have repeatedly been assured by the European Commission that ACTA is not about checking or monitoring personal laptops at airports and censoring websites, but was drafted in response to rights-holders, including authors and clothing labels, who feel that their business is damaged by international large-scale counterfeiting. As the EU's 2020 Strategy underlines, the protection of IPR is a key driver in areas such as research, innovation and employment. In order for it to be more effective in the fight against counterfeiting - which is a worldwide phenomenon - the European Commission believes that stronger international cooperation among the major world players is needed. Despite several attempts to achieve a multilateral agreement (which was the European Commission's main goal), it could not be pursued because of resistance and opposition from some countries, so an agreement between those that did want to go ahead seemed to be the best way of addressing specific concerns at an international level. Please bear in mind that those who decided not to be part of the initial negotiations are free to join at a later date. Overall, I still have some concerns over ACTA, specifically with relation to privacy issues, and will continue to seek answers that address them before deciding upon my final position when this is sent back to the European Parliament. Regards, Syed

Baroness Sarah Ludford MEP (Liberal Democrat), Wed 1st Feb

Dear Mr Harcourt, Thank you for contacting me about the Anti-Counterfeiting Trade Agreement. ACTA, an agreement with Australia, Canada, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States, is aimed at establishing an international framework to improve the enforcement of intellectual property right laws and create improved international standards for actions against large-scale infringements of intellectual property. In general I support that aim, for instance to try and curb drug counterfeiting which can kill people and in order to safeguard legitimate investment and innovation. But along with my group, the Alliance of Liberals and Democrats in Europe (ALDE), I have had serious concerns about ACTA’s implications for privacy and freedom. During all the negotiations on ACTA, ALDE group has been at the forefront calling for transparency and tabled a resolution in September 2010 asking the Commission for all relevant studies and impact assessments before signing the agreement. ALDE colleagues have sponsored many of the Parliamentary questions on this matter, a compilation of which can be found here. Negotiations were finalised in November 2010 and the relevant parties are now in the process of ratifying the Agreement through their internal procedures. In the EU this means that both the European Parliament and the Council of Ministers must give their approval. The Council adopted a decision on December 17th authorising the signature of ACTA, and the text now passes to the European Parliament for ratification. The International Trade Committee (INTA) and the Legal Affairs Committee (JURI) have already asked the Parliament’s Legal Services for advice on the agreement, and then the INTA Committee will produce a report with input in the form of opinions from the Development Committee (DEVE), the Industry, Research and Energy Committee (ITRE) and the JURI Committee. On 24 November 2010 the European Parliament adopted a Resolution in which we called on the Commission to confirm that ACTA’s implementation will have no impact on fundamental rights and data protection. MEPs welcomed the Commission’s confirmation that the ACTA provisions will be fully in line with EU law and that neither personal searches nor the so-called ‘three strikes and out’ procedure will be introduced. The Parliament also emphasised that any decision taken by the Commission as part of the ACTA Committee must not unilaterally change the agreement’s content, and that therefore any proposed change must be approved by the Parliament and the Council. ALDE will finalise its decision on whether to support the agreement or not once the legal advice and INTA committee report are available and only if concerns about interference with internet freedoms and other civil liberties can be assuaged. I would add that the European Parliament's technical service understands that attacks on the EU institutions' servers on January 26th, which disrupted the email of MEPs' Brussels offices, were orchestrated by the 'Anonymous' group of hackers, partly to coincide with the signature of the ACTA treaty in Brussels. If true, this is completely unhelpful to the work of MEPs, including trying to respond to and assist constituents. Thank you once again for contacting me about this issue. Yours sincerely, Sarah Ludford

Gerard Batten MEP (UK Independence Party), Thu 2nd Feb

Dear Mr Harcourt, Rest assured that I and my UKIP MEP colleagues will be voting against ACTA. Yours sincerely, Gerard Batten MEP

Jean Lambert (Green), Tue 7th Feb

Dear Benedict, Thank you for writing to Jean about the Anti-Counterfeiting Trade Agreement (ACTA). The Greens/EFA Group in the European Parliament is deeply concerned by both the content of the draft text and the process by which the agreement is being adopted. For this reason, not only will Jean vote against ACTA when it is put before the European Parliament, but the Greens/EFA group will be fighting to ensure that the agreement is not adopted until the European Parliament has been properly consulted and the protection of the fundamental rights of EU citizens can be assured. The recent signing of the agreement in Tokyo is an extremely disappointing development, given the ongoing concerns of citizens, experts and politicians. As ACTA is a mixed agreement, which must be signed by both individual member states and the EU, we do still have time to prevent it from becoming law in its current form. The Greens/EFA group has issued a full press release, which is available online: http://www.greens-efa.eu/digital-and-fundamental-rights-acta-5206.html Please visit http://www.jeanlambertmep.org.uk/news_detail.php?id=760 to read Jean's personal reaction to the signing of the agreement. The lack of transparency in the negotiations and drafting process to date is alarming, particularly given the ambiguous wording of several sections of the draft document. We have major concerns about the use of the term 'fair legal process' as opposed to 'due legal process', as well as several other unclear turns of phrase. Several MEPs have formally submitted questions asking the Commission to clarify what these ambiguous terms mean, and how they are expected to be interpreted by the European Court of Justice. However, the Commission's answers have not alleviated our concerns as many of them refer to documents which have not been made public. The Commission has made a document compiling all questions it has received on ACTA: http://trade.ec.europa.eu/doclib/docs/2011/april/tradoc_147852.pdf Jean shares your concerns regarding the potential impact of ACTA on European citizens' fundamental rights. In 2010, she supported Written Declaration 0012/2010 on 'the lack of a transparent process for the Anti-Counterfeiting Trade Agreement (ACTA) and potentially objectionable content'. As you may well be aware, this Written Declaration was adopted by the European Parliament in September 2010. Jean also voted in favour of the joint Parliamentary resolution tabled by the SD, ALDE, GUE and Greens/EFA groups which sought guarantees on ACTA’s conformity to existing EU legislation. Unfortunately, this was not passed, with a joint EPP/ECR resolution which essentially gave its approval to ACTA narrowly carried with 331 votes in favour, 294 votes against and 11 abstentions. To read Jean's reaction to the adoption of the EPP/ECR's resolution, please visit: http://www.jeanlambertmep.org.uk/news_detail.php?id=620 Although this was a very disappointing result for us, the Greens/EFA group remains committed to ensuring that ACTA is not adopted at the expense of the rights of citizens. Through the European Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE), the Greens/EFA group has requested a study of the compatibility of ACTA with the Charter of Fundamental Rights. This will be crucial, not only in ensuring that ACTA does not facilitate the abuse of fundamental rights, but also as it will allow the committee to request crucial preliminary documents which have been kept secret until now. This study will pay particular attention to the possibility that ACTA will facilitate the sharing of European citizens' details with countries where proper legal procedure cannot be guaranteed. We are also concerned by the effect that ACTA will have on access to medicines. Particularly worrying is the potential effect in the developing world, where many people rely on generic medicines. It is especially galling that these countries who stand to be the worst affected were completely excluded from the negotiations. The Greens/EFA Group has commissioned a study on the compatibility of ACTA with the European Convention on Human Rights and the EU Charter of Fundamental Rights: http://rfc.act-on-acta.eu/fundamental-rights. We have also commissioned a study on ACTA and access to medicines, which is available at: http://rfc.act-on-acta.eu/access-to-medicines. These studies try to compensate for the lack of proper impact assessments which were promised by the Commission, but never delivered. A Parliamentary Resolution is being drafted, the aim of which is to call for an opinion from the European Court of Justice on the compatibility of ACTA with the treaties. The Greens wholeheartedly support this resolution, which will need cross party support if it is to be successful. We are hopeful that most MEPs will understand the imperative for a full legal review of the agreement. If you would like to keep up to date with developments in the adoption of ACTA you may be interested to read Christian Engström's blog. (Christian is a Swedish MEP, and one of Jean's colleague in the Greens/EFA group): http://christianengstrom.wordpress.com/category/english/ I would also like to draw your attention to our campaign page: http://en.act-on-acta.eu/Main_Page. You can find the campaign on Facebook, and follow us on Twitter (@Act_on_Acta). Thank you again for writing to Jean on this important matter. Please be assured that the Green/EFA group will continue to fight both the content of ACTA and the lack of transparency in its adoption at every possible opportunity. Yours sincerely, Tristan Smith Constituency Casework Assistant Office of Jean Lambert MEP Green Party Member of the European Parliament for London

Dr. Charles Tannock (Conservative), Wed 8th Feb

This email was a block copy of Syed Karmall's email. However, an explanation was given for this:

Thank you for contacting Dr. Tannock with regards to the Anti-Counterfeiting Trade Agreement (ACTA). Dr. Tannock sits on the Foreign Affairs and Human Rights committees in the European Parliament and we have therefore contacted his colleague, Syed Kamall MEP, who is leading for the ECR group on this issue. Please see his statement below. If you have any further questions, please do not hesitate to contact Mr. Kamall's office: syed.kamall@europarl.europa.eu.

1. 1 ↑ //blog.harcourtprogramming.co.uk/post/richard-odwyer
2. 2 ↑ //blog.harcourtprogramming.co.uk/post/thanks-of-the-day
3. 3 ↑ //blog.harcourtprogramming.co.uk/post/acta-thoughts
4. 4 ↑ //blog.harcourtprogramming.co.uk/post/further-acta-note
5. 5 ↑ http://www.writetothem.com/
6. 6 ↑ Received in almost identical form by multiple constituents, not directly addressing issues I highlighted
7. 7 ↑ In fact, it contained less information on some of the points it covered than my initial email, which either means they merely filtered on keywords without reading, or whoever replied didn't feel it worth the effort to drop a superfluous paragraph or two...