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.
Comparing ACTA and EU laws
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.
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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The FFII is a not-for-profit association, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1,000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.