[Ip-health] ACTA goes beyond present EU laws

Ante ante at ffii.org
Mon Oct 25 02:14:39 PDT 2010

[ ACTA / Economy / Innovation ]
ACTA goes beyond present EU laws

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 legislation

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: 

Background information

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. 


FFII ACTA analysis on ICT and climate change:

FFII ACTA analysis on criminal measures:

ACTA goes beyond present EU legislation - ACTA and EU legislation compared

General FFII ACTA analysis:

Permanent link to this press release:

FFII press releases:


FFII Office Berlin 
 Malmöer  Str. 6 
 D-10439 Berlin 
 Fon:  +49-30-41722597 
 Fax Service: +49-721-509663769  
 Email:  office (at) ffii.org  
Ante Wessels 
 ante at ffii.org 
 +31 6 100 99 063 

About FFII

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.

More information about the Ip-health mailing list