Amnesty International today urged EU governments not to join the Anti-Counterfeiting Trade Agreement (ACTA), branding it a “Pandora’s box” of potential human rights violations.
Starting this Saturday, 11 February, a range of civil society groups and individual citizens have planned protests in many European cities to voice opposition to ACTA before the European Parliament decides whether to formally ratify the pact later this year.
ACTA seeks to establish new standards for enforcing a wide range of intellectual property rights, including trademarks, copyrights and patents.
Amnesty International believes the pact's content, process, and institutional structure impact in a number of ways on human rights – especially the rights to due process, privacy, freedom of information, freedom of expression, and access to essential medicines.
“The EU should reject ACTA in its current form – implementing the agreement could open a Pandora's box of potential human rights violations by doing away with due process and front-loading the requirement to enforce its provisions,” said Widney Brown, Senior Director of International Law and Policy at Amnesty International.
“While Amnesty believes that creators should be compensated for their work, the protection of intellectual property should never come at the expense of basic human rights.”
Amnesty International is concerned about ACTA’s broad coverage, vague language, and tendency to value private law enforcement over judicial review.
Rather than allowing the courts to resolve how infractions of the ACTA should be treated, the pact obliges states to encourage third parties to enforce its provisions.
This would incentivize Internet Service Providers (ISPs) to impose repressive measures to avoid infringements, such as blocking, deleting, or even suspending services without recourse to judicial review.
Companies may be threatened with criminal sanctions if they derive “indirect” economic benefit from infringements or if they are deemed to have “aided and abetted” one or more acts of infringement. This is likely to have a chilling effect on free speech and access to information.
As these private companies would also be incentivized to implement intrusive surveillance technologies in order to avoid being liable for the actions of their users, this would also lead to gross violations of user privacy.
Access to generic medicines and other essential products could also be affected, as the ACTA would give customs officials the authority to seize products with labels suspected of being confusingly similar to trademark brands. Giving generic medicines similar labels helps to communicate medical equivalence and supports public health policy goals.
Amnesty International is also gravely concerned about the ACTA’s vague and meaningless safeguards. Instead of using well-defined and accepted terminology, the text refers to concepts such as “fundamental principles” and even invents a concept of “fair process”, which currently has no definition in international law.
“Worryingly, ACTA’s text does not even contain references to safeguards like ‘fundamental rights’, ‘fair use’, or ‘due process’, which are universally understood and clearly defined in international law,” said Widney Brown.
Behind closed doors
A small number of states including EU members, Japan, Australia and the USA, have negotiated the Agreement since 2007.
The negotiation process has lacked transparency and democratic credibility, as it has taken place outside of recognized institutions, such as the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO).
The public was kept out of the process, and civil society, despite its demands, has not yet had access to all documents relating to the ACTA negotiations. US industry was kept up to speed with the negotiations, on condition that the industry partners signed a non-disclosure agreement.
The resulting standards are tremendously skewed towards protecting commercial interests over human rights.
The EU – representing 27 governments – is due to start hearings on the ACTA in March, with a ratification vote tentatively slated for June or July.
The pact would set up an unelected “ACTA committee”, which would have the power to set standards, negotiate accessions of new countries and promote “best practices”. It would also be the first port of call to interpret the meaning of the frequently vague text of the agreement – creating meaning after parliaments had given their approval.
Most of these functions are already carried out by the WIPO, where civil society has a voice and deliberations are generally transparent and predictable.
“All global trade agreements must be negotiated transparently under the auspices of existing intergovernmental organizations such as the WIPO or the WTO,” said Widney Brown.
“Multilateral trade agreements that affect public goods, including freedom of expression, innovation and access to basic medicines, must always uphold basic human rights principles, such as accountability, transparency, participation, equality and sustainability. ACTA has failed on all of these fronts.”