November 22, 2010

FFII expression of concerns with ACTA

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Letter by Ante Wessels, FFII, to members of the European Parliament:

Dear Members of the European Parliament,

We are writing to express our concerns with the Anti-Counterfeiting Trade Agreement
(ACTA).

Contrary to Commission statements, ACTA is inconsistent with the EU acquis. Moreover, by still including patents and harsh criminal measures, ACTA threatens legitimate businesses as detailed below. We urge the European Parliament to exclude patents from the scope of ACTA and to obtain the opinion of the Court of Justice as to whether ACTA is compatible with the Treaties.

ACTA is inconsistent with the EU acquis. The most explicit example regards Council Regulation (EC) No. 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights (BMR). With regards to trademark goods, the BMR is limited to counterfeit goods. ACTA’s border measures section is, with regards to trademark goods, not limited to counterfeit goods. This has implications on access to medicine. [1] A second example regards damages. ACTA’s damages (suggested retail price) are higher than the acquis, the EU Enforcement Directive sets damages as lost profit or royalties. [2] Especially in combination with the Union patent, which will make litigation more profitable, we may see, in the ICT sector, the same patent litigation battlefield in Europe as in the United States. This will be harmful for European SMEs. [3] We believe an independent assessment on the relationship between ACTA and the EU acquis is needed.

Interestingly, the United States, long time ardent supporter of stronger enforcement, will exclude patents from the scope of ACTA. This will give the US the freedom to fine tune it patent enforcement regime. The EU will not have this freedom. Inclusion of patents in ACTA does not only lead to problems in the ICT sector. It also harms access to medicine and diffusion of green technology. The inclusion of patents in ACTA endangers European SMEs, innovation, technology transfer and human lives. We urge the Parliament to fully exclude patents from the scope of ACTA.

ACTA’s criminal measures section is not limited to large scale activities, does not contain a de minimis exception, does not contain other exceptions and also covers companies and individuals. ACTA can be used to criminalise newspapers revealing a document, office workers forwarding a file and private downloaders. [4]

ACTA already contains harsh civil and border measures, we seriously doubt the necessity and proportionality of adding intrusive criminal measures (beyond the TRIPS agreement). We urge the European Parliament to obtain the opinion of the Court of Justice as to whether ACTA is compatible with the Treaties.

Yours sincerely,

Ante Wessels
Foundation for a Free Information Infrastructure

[1] http://acta.ffii.org/wordpress/?p=205

[2] http://people.ffii.org/~ante/acta/acta-acquis2.pdf

[3] http://action.ffii.org/acta/Analysis

[4] http://acta.ffii.org/wordpress/?p=34