Why is the EU asking the ECJ to review ACTA and does it matter?

February 27th, 2012 by Barry Sookman Leave a reply »

Last week the European Commissioner for Trade, Karel De Gucht, released a statement announcing that the EU will refer the ACTA (Anti-Counterfeiting Trade Agreement) to the European Court of Justice (ECJ). The ECJ will be asked to assess whether ACTA is incompatible – in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property.

What reason did the Commissioner give to explain the referral to the ECJ?

  • A fear that ACTA will censor websites? No.
  • A fear that ACTA could be used to shut websites down? No.
  • A fear that ACTA will hinder freedom of the Internet? No.
  • A fear that ACTA will hinder freedom of speech? No

ACTA is being referred to the ECJ so that the debates about ACTA can be based on accurate information – the facts. The reference is to authoritatively dispel the misinformation about ACTA that has dominated social media sites and blogs in recent weeks, much of it trying to liken ACTA to the unpopular US Congressional legislation called SOPA. A main goal is to promote a calm, reasoned, and democratic debate about the issues. This is clear from the statement which says the following:

I am glad to say that this morning my fellow Commissioners have discussed and agreed in general with my proposal to refer the ACTA agreement to the European Court of Justice.

We are planning to ask Europe’s highest court to assess whether ACTA is incompatible – in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property…

That said, I believe the European Commission has a responsibility to provide our parliamentary representatives and the public at large with the most detailed and accurate information available. So, a referral will allow for Europe’s top court to independently clarify the legality of this agreement.

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…

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….

ACTA will not censor websites or shut them down; ACTA will not hinder freedom of the internet or freedom of speech.

Let’s cut through this fog of uncertainty and put ACTA in the spotlight of our highest independent judicial authority: the European Court of Justice.

This clarity should help support a calm, reasoned, open and democratic discussion on ACTA – whether at the national or at the European level. We will also be in contact with the other European institutions to explain this step and why it would make sense that they make the same move.

The Commissioner is not the first person to note that many of the current criticisms of ACTA are based on misinformation, much of which went viral following the debates over SOPA. For example, Michael Geist, a staunch opponent of ACTA, admits that the current rhetorical transference of SOPA to ACTA is misplaced. The online blog Ars Technica, another opponent of ACTA (and also generally of effective IP laws and remedies), also pointed out that much of the hysteria over ACTA is based on “misleading or outright inaccurate” information.

At Ars Technica, we’re as committed as anyone to defending free speech, fair use, and the open Internet against draconian new copyright laws. But it’s important for the debate to be informed by accurate information. Unfortunately, many of the claims about ACTA that are circulating among the treaty’s opponents are highly misleading or outright inaccurate. We’ve been covering ACTA for over four years, and hopefully we can shed some light on a tricky subject.

Unfortunately, the opposition to ACTA is not the only occurrence of the use of social media to disseminate inaccurate information to oppose intellectual property legislation. Another recent example is the opposition to an instrument published by the Irish Government to implement Article 8(3) of the Information Society Directive. The Directive, which was adopted by the EU more than a decade ago, requires member states to give their courts the jurisdiction to make orders against service providers to prevent their systems from being used by third parties to infringe copyright. The Directive which has been transposed into the laws of member states has been used for years in the EU to grant blocking orders against sites like The Pirate Bay. The Article has been interpreted by the European Court of Justice, however, to require a careful consideration of interests of rights holders, ISPs and individuals before an order can be made. Orders of unlimited scope simply cannot be made. See, Productores de Música de España (Promusicae) v Telefónica de España SAU Case C-275/06 29 January 2008, Scarlet Extended SA v SABAM , (ECJ Case C-70/10) 24 November, 2011, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v  Netlog NV, Case C‑360/10, 16 February 2012.

Last year, an Irish court ruled that Article 8(3) had not been properly transposed into Irish law.  Accordingly, the Irish Government introduced an instrument to properly implement that Article into law. Immediately after the announcement of the Irish instrument Internet activists sought to leverage the opposition to SOPA to demonize the Irish instrument by dubbing it “Ireland’s SOPA.”  Yet, as pointed out by Dublin based lawyer Linda Scales

Far from being ‘Ireland’s SOPA.’ the instrument is a slight, vague and mild-mannered piece.  Treading ever so carefully, it permits the copyright owner ‘to apply for an injunction against an intermediary to whom paragraph 3 of Article 8…. applies.  In considering the application, the court must have regard to the ‘rights of any person likely to be affected’ and shall give ‘such directions … as the court considers appropriate in all the circumstances’.

As a result of the opposition, much of it based on misinformation similar to the criticisms of ACTA, the Irish Minister of State for Research and Innovation, Seán Sherlock, issued a statement to rebut the misinformation called, Legitimate Copyright Protection In Ireland: Not SOPA. To set the record straight, he said the following:

We all subscribe to the freedoms, the opportunities and the access to information that the Internet provides us with. Ireland is home to some of the world’s most innovative internet companies and we are determined to grow our reputation as a location where smart people and these smart companies can continue to innovate in this fast moving arena.

The last thing innovators need is a culture where the outputs of their creative endeavours have to be locked away or kept secret for the fear of theft. Ireland is very proud of the fact that we have a modern suite of intellectual property laws that by their very nature balance a range of competing interests and rights in a manner that is seen, right across the globe, as reasonable and proportionate.

Going right back to 22 December , 2002, the date by which every EU Member State had to have implemented Directive 2001/29/EC, every EU country has had to “ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by third parties to infringe a copyright or related right”. Having that provision enshrined in EU law and the laws of Member States for a decade has not restricted the development of the Internet or innovative internet companies. On the contrary, the Internet has flourished…

Concerns have been expressed that the proposed Statutory Instrument mirrors the Stop Online Piracy Act (SOPA) in the United States. These concerns are not based on fact. The purpose of the Statutory Instrument is simply to provide explicitly that injunctions may be sought, as obligated by the two EU Directives cited above. It should also be noted that such injunctions are available in all other Member States of the European Union by virtue of the two Directives already referred to and have been required since at least December 2002 and since that time the internet has flourished. Europe is quite unlike the United States. In granting any injunctions an Irish court must take account of Court of Justice of the European Union judgements. The court must consider the rights of any person (including businesses) likely to be affected.

EU law has held that copyright is not an absolute right but must be balanced with other rights protected by the Charter of Fundamental Rights of the European Union…

In proposing to amend the legislation, I am particularly conscious of the importance of online content and digital businesses in the Irish context and, accordingly, am simply seeking to ensure Ireland’s continued compliance with its obligations under the relevant EU Directives following the decision of the High Court in the aforementioned UPC case. It is very clear from the rulings of European Court that any remedy applied will have to be proportionate and we can be confident that this approach protects rightsholders by allowing them the access to the courts that we must provide while protecting the fundamental rights of third parties.

I trust that this information will clarify the issue.

There are other examples of the use of social media to disseminate inaccurate information to oppose intellectual property legislation. Many commenters have documented the inaccurate information disseminated over social networks in opposition to SOPA.1 Similar methods have been used in Canada as well. One example was the inapposite attempt to brand Bill C-11 and proposed amendments to it as Canada’s SOPA. Richard Owens also documented an attempt by “a clandestine group of mod-chip distributors, foreign websites administrators and international BitTorrent users” to use social media to game Canada’s copyright consultations to oppose legal protection for technological measures (TPMs). Another example is  Michael Geist’s Facebook Fair for Copyright of Canada and follow-on campaigns against the legal protection for TPMs. See, Separating copyright fiction from facts about C-32’s TPM provisionsSeparating facts from hype about C-32Are the TPM provisions in C-32 more restrictive than those in the DMCAC-32 and the BlackBerry PlayBook: A reply to Michael Geist, and  TPMs and Flexibility (’The Ability of Bending Without Breaking’) – Why Should the TPM Provisions of Bill C-32 Protect Access Controls and Prohibit ‘Preparatory Acts”. Michael Geist’s campaign to oppose ACTA while it was still being negotiated is another example. See, Fear Mongering and Misinformation Used to Slag ACTA, A reply to ACTA critics, and More hype than facts about ACTA from its critics.

Do campaigns to oppose intellectual property laws that use social media to disseminate inaccurate information to rouse emotions to influence public opinion matter? Of course they do. Amendments to IP laws are important and can affect all stakeholders including creators and other rights holders, intermediaries, and users. The issues deserve debate. But, as European Commissioner for Trade, Karel De Gucht noted, these kinds of debates should be “calm, reasoned, open and democratic”.

Earlier this month the Chief Justice of the Supreme Court of Canada gave a speech at Carleton University in which she questioned whether fairness and accuracy might be lost in the world of blogging, tweeting and the use of social networks. Her speech focused on the impact of social media on the administration of justice. Her questions might well also be put to examining whether calm, reasoned, open and democratic debate about IP legislation is being lost in social media and blogs.

 

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1 Lobbyists 1, Internet 0: An Alternative Take on SOPAWho Really Stopped SOPA, and Why?The False Ideals of the WebNo oil meets no copyrightWhat Wikipedia Won’t Tell YouThe Truth Behind Google’s Copyright-Bills HysteriaAnti-piracy battle reveals dysfunctional thinkingIf you critique SOPA, read the text. If you read the text, read it rightSOPA: A Bad Solution to a Very Real ProblemProtecting Americans from Web scamsFighting Online PiracyPut Down the Pitchforks on SOPA.

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