[governance] ACTA goes beyond present EU laws

[Fouad Bajwa]

The following news about ACTA from FFII would be of interest to EU members:

[ ACTA / Economy / Innovation ]
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ACTA goes beyond present EU laws
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Brussels, 25 October 2010 -- The Anti-Counterfeiting Trade Agreement (ACTA) is
not in line with present EU laws, according to a Foundation for a Free
Information Infrastructure (FFII) analysis. Previously, the European
Commission has often stated that ACTA would remain fully in line with existing
EU legislation.

Health groups have pointed out that ACTA will hamper access to essential
medicine in developing countries. FFII's analysis focusses on the impact ACTA
will have on European SMEs in the ICT field, and on diffusion of green
technology, needed to fight climate change. The FFII concludes that patents
have to be excluded from ACTA's civil enforcement section.

FFII analyst Ante Wessels: "With ACTA, holders of huge patent portfolios could
decide to eliminate competition from start-ups, small and medium sized
enterprises and open source projects, on their own, or by using a proxy, a
patent troll. This is bad for European small and medium sized enterprises,
which provide for most of Europe's employment."

The FFII criticises that to date no independent impact assessments have been
made of the effects ACTA will have on ICT, access to medicine and diffusion of
green technology.

Ante Wessels: "Astonishingly, our analysis of the effects ACTA will have on
diffusion of green technology is the first ever made, as far as we can see. We
urge the European Union to order independent impact assessments. These issues
are much too important to be neglected."

In a separate document, the FFII analyses ACTA's criminal measures. According
to the FFII, ACTA criminalises newspapers revealing a document, office workers
forwarding a file and possibly downloaders; whistle blowers and weblog authors
revealing documents in the public interest and remixers and others sharing a
file if there is an advantage. Even if that advantage is only indirect, an
element which may be fulfilled by others.

ACTA’s criminal measures go beyond the European Parliament 2007 position on
the proposed Directive on criminal measures and fail to meet the EU principle
of proportionality.


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Comparing ACTA and EU legislation
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Damages based on suggested retail price (ACTA art 2.2 versus IPRED art 13).
Suggested retail prices for patent infringements are beyond any proportion.
For instance, software may contain hundreds of patents, from multiple rights
holders. The "invention" - if there is any - is only a tiny aspect of the
product in such cases. Still, the first rights holder going to court can get
damages on suggested retail price, the second and third too, etc.

Injunctions against a third party are more limited in the present EU
legislation than under ACTA; the present EU legislation also has broader
exceptions (ACTA art 2.X versus IPRED art 11 and 12).

Also, regarding destruction of infringing goods and production facilities, the
present EU legislation has more checks and balances than ACTA (ACTA art 2.3
versus IPRED art 10). ACTA sets a rule, and only exceptional circumstances may
prevent destruction.

These are just some examples from the civil enforcement section, further
scrutiny is needed. But even if inconsistencies between ACTA and EU
legislation are solved, ACTA will dramatically limit much needed police space.

There are no EU criminal measures against IP infringements. Others report
issues with privacy and the Internet measures. See:
http://action.ffii.org/acta/ACTA-IPRED


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Background information
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Behind closed doors, the European Union, United States, Japan and other trade
partners are negotiating the Anti-Counterfeiting Trade Agreement. ACTA will
contain new international norms for the enforcement of copyrights, trade mark
rights and other exclusive rights.


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Links
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FFII ACTA analysis on ICT and climate change:
http://people.ffii.org/~ante/acta/ACTA-FFII-ICT-Climate.pdf

FFII ACTA analysis on criminal measures:
http://people.ffii.org/~ante/acta/ACTA-FFII-Criminal-Measures.pdf

ACTA goes beyond present EU legislation - ACTA and EU legislation compared
http://action.ffii.org/acta/ACTA-IPRED

General FFII ACTA analysis:
http://action.ffii.org/acta/Analysis

Permanent link to this press release:
http://press.ffii.org/Press%20releases/ACTA%20goes%20beyond%20present%20EU%20laws

FFII press releases:
http://press.ffii.org/Press%20releases

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Contact
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FFII Office Berlin
 Malmöer  Str. 6
 D-10439 Berlin
 Fon:  +49-30-41722597
 Fax Service: +49-721-509663769
 Email:  office (at) ffii.org
 http://www.ffii.org/

Ante Wessels
 ante at ffii.org
 +31 6 100 99 063


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About FFII
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The FFII is a not-for-profit association registered in twenty European
countries, dedicated to the development of information goods for the public
benefit, based on copyright, free competition, open standards. More than 1000
members, 3,500 companies and 100,000 supporters have entrusted the FFII to act
as their voice in public policy questions concerning exclusion rights
(intellectual property) in data processing.

-- 
Regards.
--------------------------
Fouad Bajwa
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