ACTA analysis: The world faces major challenges

Introduction

Spring 2012, the European Commission asked the Court of Justice of the European Union its opinion on whether the Anti-Counterfeiting Trade Agreement (ACTA) is compatible with the European Treaties, in particular with the Charter of Fundamental Rights of the European Union. The European Parliament did not wait for the court's opinion and rejected ACTA on 4 July 2012 in a 478 to 39 vote with 165 abstentions. The commission did not withdraw its request for an opinion after the parliament's decision. The commission announced that if the court finds ACTA compatible with the European Treaties, it may re-propose ACTA to the parliament.

The world faces major challenges: access to medicine, diffusion of green technology needed to fight climate change, and a balanced Internet governance. While flexibility is essential to solve these major issues, ACTA codifies draconian measures. ACTA's predecessor, the 1994 WTO TRIPS agreement, still hampers fair trade, even in life saving generic medicines. The EU should have chosen to further balance, in the World Trade Organization, the TRIPS agreement.

The EU should seek a balanced solution in WTO and WIPO.

ACTA's measures are meant to paralyze people. ACTA's intrusive character harms health and freedom of expression. ACTA will have a chilling effect on innovation, Internet service providers, mass digitization projects, startup companies and diffusion of green technology.

We will give two examples of a global pricing problem that ACTA will not solve but aggravate. We will show ACTA's measures are draconian and go beyond current EU law. ACTA will hamper essential freedom to act and innovate in the knowledge society.

From TRIPS to ACTA

A few years after the European Community ratified the 1994 WTO TRIPS agreement, the AIDS epidemic took many lives in Africa. In sub-Saharan Africa alone more than 17 million people have died. After treatment became available, pharmaceutical companies sold AIDS medicine in Africa for prices higher than in the US. They only served a small number of patients, the others died. Mandela's intervention, and international outcry, ultimately led to the Doha Declaration on TRIPS and Public Health.

Despite the Doha Declaration, the access to medicine problem still exists. Pulitzer Prize winner Tina Rosenberg wrote on the NY Times Opinionator blog: "The new strategy is to treat people in Egypt, Paraguay, Turkmenistan or China — middle-income countries, all — as if they or their governments could pay hundreds or even thousands of dollars a year each for AIDS drugs. This low-volume high-profit strategy might make business sense. But in terms of the war against AIDS, it means surrender."

It is impossible to maximize both profits and access to medicine. To not commit a crime against humanity, access to medicines has to come first. Health groups and academics have pointed out ACTA will undermine access to generic medicines, see below.

Draconian measures do not help against media piracy

High prices for media goods, low incomes, and cheap digital technologies are the main ingredients of global media piracy. Relative to local incomes in Brazil, Russia, or South Africa, the price of a CD, DVD, or copy of Microsoft Office is five to ten times higher than in the United States or Europe, the Media Piracy in Emerging Economies report shows. There is no distribution of legal CDs and DVDs outside the capitals. Some 90% of the people in emerging economies can only turn to illegal media copies. Stronger enforcement can not solve the piracy problem, which is basically a global pricing problem, a sign of market failure.

We all know pictures of big piles of illegal CDs to be destroyed by a bulldozer. We may think: finally country X takes action against piracy. The real story behind these pictures is that these illegal copies are the only way 90% of the people in emerging economies can enjoy software, music and movies. The costs in social welfare of harsh measures are enormous.

ACTA adds draconian measures

ACTA introduces damages based on retail price. This leads to damages based on an imaginary gross revenue. For instance, someone in an emerging economy selling 100 illegal copies of a CD for 2 euro, has a gross revenue of 200 euro. With damages based on retail price, he may have to pay 2000 euro damages (100 x 20), ten times his gross revenue. The actual loss suffered may be zero, as there is no distribution of legal CDs outside the capitals, and almost none of his clients would have been able to pay the retail price.

Copying a hard disk for personal use may lead to a 540.000 euro lawsuit. Mass digitization projects and start up companies may face lawsuits of millions or billions euro.

These damages go beyond current EU law, which is based on actual loss suffered, including lost profits. The Commission denies ACTA's damages are higher than EU law. Apparently, the Commission does not want to see the difference between imaginary gross revenue and actual lost profits.

ACTA's criminal measures turn against citizens as well. ACTA includes criminal measures, without excluding small scale infringements and public interest infringements. ACTA can be used to criminalise newspapers revealing a document, office workers forwarding a file, people making a private copy and whistle-blowers revealing documents in the public interest.

Conclusion

ACTA will not solve the global pricing problem, but aggravate it. ACTA will increase social welfare costs, inflict unjustified and disproportional punishment and endanger lives. ACTA will hamper essential freedom to act and innovate in the knowledge society.

Analysis ACTA text

FFII analysis Final ACTA text following legal verification, Dec 2010

For latest developments, see our ACTA blog

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

The negotiating parties released the "final" ACTA text. See for differences with earlier versions the compare page.

A 2011 version does not contain substantial changes other than: "This Agreement shall remain open for signature by participants in its negotiation,17 and by any other WTO Members the participants may agree to by consensus, from 1 May 2011 until 1 May 2013."

See also the FFII ACTA page and our our ACTA blog.

ACTA goes beyond current EU law

Civil society groups and prominent academics analysed ACTA and found that ACTA goes beyond the current EU legislation and violates fundamental rights.

Opinion of European Academics on ACTA: "Contrary to the European Commission’s repeated statements and the European Parliament’s resolution of 24 November 2010, certain ACTA provisions are not entirely compatible with EU law and will directly or indirectly require additional action on the EU level." They invite "the European institutions, in particular the European Parliament, and the national legislators and governments, to carefully consider the above mentioned points and, as long as significant deviations from the EU acquis or serious concerns on fundamental rights, data protection, and a fair balance of interests are not properly addressed, to withhold consent."

The European Commission’s services comments to the European Academics’ Opinion on ACTA is very weak. In one case, the Commission actually even states it insisted ACTA would go further than current EU legislation. See: FFII: The EU Commission lacks basic reading skills.

A study commissioned by the European Parliament INTA committee evaluated the prior discussion, and concluded that ACTA indeed goes beyond the current EU legislation.

European Parliament INTA study on ACTA: "for those European Parliamentarians for whom conformity with the EU Acquis is sine qua non for granting consent, this study cannot recommend that they provide such consent to ACTA as it now stands." See also FFII comments on the INTA study.

Let's take one example.

ACTA introduces damages based on retail price. This leads to damages based on an imaginary gross revenue. For instance, someone in an emerging economy selling 100 illegal copies of a CD for 2 euro, has a gross revenue of 200 Euro. With damages based on retail price, he may have to pay 2000 euro damages (100 x 20), a tenfold of his gross revenue. The actual loss suffered may be zero, as there is no distribution of legal CDs outside the capitals, and almost all the consumers may not have been able to pay the retail price.

Copying a hard disk for personal use may lead to a 540.000 euro lawsuit. Mass digitization projects and start up companies may face lawsuits of millions or billions euro.

These damages go beyond current EU law, which is based on actual loss suffered, including lost profits. The Commission denies ACTA's damages are higher than EU law. Apparently, the Commission does not know the difference between imaginary gross revenue and profits.

The INTA study recommends: "Seeking clarification, before ratification of ACTA, from the European Court of Justice that the criteria envisaged by the ACTA for the quantification of the compensatory damages would not amount to a violation of the criterion of "appropriateness of the damage to the actual prejudice suffered" envisaged in the Enforcement of IPRs Directive;"

Korff and Brown, fundamental rights experts, conclude: "In our opinion, here too ACTA is deficient: without express clarification to the effect that damages awarded to right holders must be a reasonable reflection of actual loss, equitably assessed by a court (rather than an exaggerated assessment based on an unchallengeable but rigged formula), the Agreement violates both the right to property and the right to a fair (civil) trial of the defendants."

Douwe Korff & Ian Brown, Opinion on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights, 2011:

ACTA's damages beyond actual loss upset millennia of legal tradition.

Innovation and startup market entry

ACTA footnote 2 says: "A Party may exclude patents and protection of undisclosed information from the scope of this Section."

It is important to note that the inclusion of patents and data protection within ACTA’s enforcement mandates remains the default position. The provision that a country "may exclude" suggests that such exclusion should be the exception rather than the rule. This language may thus encourage countries to apply the ACTA civil enforcement provisions to patents and data exclusivity, and could be used by trading partners for this purpose.

The Commission already stated it does not want to make a distinction between rights. As a result, ACTA's draconian civil measures will extend to patents.

To stimulate startup companies, the EU legal situation should minimize market entrance risks for innovators. FFII members mostly operate in digital markets, in these markets, innovators are often confronted with patent minefields. In the software field, there are so many patents with a broad scope that infringement is often unavoidable.

While the European Patent Office aims at improving quality, it is simply too costly to split wheat for chaff. Many patent professionals regret the situation. According to a Stanford Law School article, patent offices are rational ignorant, strengthening the examination process is not cost effective. "Because of this, society would be better off spending its resources in a more searching judicial inquiry into validity in those few cases in which it matters than paying for a more protracted examination of all patents ex ante." Basically this means that the costs of judicial inquiry into validity of a patent falls on the shoulders of the alleged infringer. For startup companies such costs are often too high to bear. An allegation of infringement may easily lead to market exclusion. The same is true for open source projects.

Established players in late stages of their own market life cycle may abuse the patent system to stifle entrants and emerging competitors, patent trolls drain market entrants in a phase where they want to grow. The innovation system should reap the full benefit for innovative companies and consumers.

The "Hargreaves Review" — the UK government-commissioned study on the relationship between intellectual property and growth, observes: "6.19 Industries working in sequential technologies therefore face a "double whammy": the incentives provided by patents are reduced, while the negative consequences, in the form of thickets which must be navigated, are increased. This means that while for non-sequential inventions, such as a new drug or medical treatment, having a patent system generally yields higher welfare than not having one; in a fully sequential case, higher welfare and more innovation may be more likely to result from the absence of patenting opportunities.17 Over time, as digital technology becomes pervasive across the economy, this represents a serious concern. (...)

6.21 Computer programs provide an important example of a sequential innovation environment where the double whammy mentioned above strikes. Given the pace of change in the digital world and the strongly sequential nature of innovation in computer programs, the problems arising from thickets in this environment are particularly severe and it is essential that changes do not worsen the situation."

Risk reduction for startups is key to improve investment conditions; risks of know-how drain and risks of IPR enforcement abuse need to be carefully balanced. The actual needs of innovators should be in the center.

The lesson to learn from the US is: try to limit the number of patent infringement cases and damages. In contrast, ACTA contains excessive civil measures against patent infringements. Holders of huge patent portfolios may decide to eliminate competition from startups, small and medium sized enterprises and open source projects, on their own, or by using a proxy, a patent troll. Patent trolls acquire excessive power.

The FFII advises to reduce market entrance risks for innovative companies, to find a fair balance between established companies and startups. In its present form, ACTA is detrimental.

Patent trolls

Patents create a legal minefield in the software development field. Software is full of ideas, and unfortunately, full of patents. Software patents hamper competition, follow up innovation and interoperability. They cause legal uncertainty and high consumer prices. All software developers ignore software patents to some extent, simply because every single useful program you write infringes on several patents.

The situation is abused by non-practicing entities or patent trolls. They acquire patents at low cost, for instance by buying bankrupted companies. Their patents tend to have broad claims on trivial methods so that infringement is unavoidable. Then they extort entrepreneurs. It is not possible to retaliate against them. They do not produce anything, do not infringe themselves.

Unavoidable patent infringements combined with strong measures gives patent trolls the option to tax startups and small and medium sized enterprises. Patent trolls acquire excessive power. EU law should contain measures against abuse by patent trolls.

United States: patent litigation battlefield

"We are the constant target of patent lawsuits, many of which are frivolous and more than half are filed by non-practicing entities," Mike Holston, general counsel of Hewlett-Packard

"We find ourselves in a situation with more patent infringement suits than ever before and each one costs as much as $4 million," John Thompson, chief executive of software developer Symantec.

The United States experiences a patent litigation battlefield, especially in the mobile market. In the U.S, even major companies, owning huge patent portfolios, want patent reform. They wish to limit the number of patent infringement cases and damages. Pharmaceutical companies oppose even a limited reform that would help major ICT companies.

Hewlett-Packard holds about 30,000 patents and is granted an average of four every day. With lower damages, trolls and small sized companies can not hurt HP, while HP can still strike against smaller competitors. A limited reform helps major companies, not small and medium sized companies, which are very innovative and provide for much employment.

The lesson to learn from the US is: try to limit the number of patent infringement cases and damages. In contrast, the Commission seems to want to make patent litigation just as popular in the EU. The EU may well succeed in that, with adoption of EU wide litigation (the Union patent). Furthermore, the Commission wants higher damages.

Startup companies face excessive damages

Damages beyond the actual prejudice have a disproportional negative effect on startup companies.

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. The entire market value rule (EMVR) systematically results in the overcompensation of patent owners relative to their inventive contributions to society.

"Patent experts increasingly see the EMVR as a deeply defective approach to patent damages, and call for 'more rigorous, empirical approaches' that 'provide adequately detailed evidence of consumer-driven demand,' as well as a realistic analysis of the importance of a particular patented invention in a product that may contain dozens, hundreds or even thousands of inventions, not to mention significant investments and outlays entirely unrelated to the patented invention." KEI letter to the European Parliament

Injunctions limit market entrance

ACTA contains injunctions in civil cases (Art 8.1, ex Art 2.X.1). With an injunction a competitor or patent troll can force a company to withdraw from the market – while infringement is unavoidable.

ACTA also contains injunctions against third parties (Art 8.1, ex Art 2.X.1). ACTA adds "inter alia" and has a broader formulation of third party than the current EU legislation. ACTA includes third parties who are not intermediaries, like suppliers of raw materials and software. This may impact access to medicine and the ICT sector.

Provisional measures lower burden of proof against startups

ACTA contains effective provisional measures, inaudita altera parte, against party or third party to prevent an infringement of any intellectual property right from occurring (Art 12, ex Art 2.5).

Before an infringement is proven, provisional measures allow actions to interrupt or suspend competition. A suspicion of infringement is enough to invoke these measures. The potential for abuse of provisional measures against startups is high, as all provisional measures can be implemented even "without the other party having been heard".

Interlocutory (provisional) injunctions used as an enforcement remedy, are particularly damaging for startups. Provisional injunctions have a lower threshold of evidence. As the costs of a subsequent court case are often too high for startups, the interlocutory injunction will often be a definitive judgment, terminating the startup’s market entry. This, in effect, lowers the burden of proof necessary to carry out enforcement measures against a suspected infringement.

EU law needs measures against abuse of provisional measures to ensure a fair balance between established companies and startups. ACTA forcloses essential reforms.

Other civil measures

An alleged infringer has to provide information (Art 11, ex Art 2.4).

ACTA's Internet chapter article (Art 27, ex Art 2.18.1) includes expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement against an act of intellectual property rights infringement, this includes patents. This will make life easy for anyone who likes to destroy the online software distribution of a competitor. After claiming a software product infringes patents, ISPs will have to remove software repositories and stop transmissions, to be on the safe side. The other ACTA Internet chapter measures may include patents.

ACTA will hamper the fight against climate change

"Stringent intellectual property rules could hamper the spread of technology needed to fight climate change." Paul David, professor of economics at Stanford University, California (IP-Watch)

Health groups point out issues with regards to access to medicine. The inclusion of patents in ACTA causes most of these problems. Much less documented than issues with access to medicine are issues with diffusion of green technology. It is a more recent and diffuse issue. Not protected by the Doha Declaration, diffusion of green technology may face worse problems than access to medicine. Furthermore, medicines are often protected by a limited amount of patents. Complex products on the other hand may be covered by many patents. For instance, software systems may be covered by hundreds of patents.

The fight against climate change will inherit the problems in the software field. In a general way, like trivial patents, amassing of patents, patent trolls, frivolous lawsuits, hampering of follow up innovation and high transaction costs. And in direct ways, there are green software and business patents, e.g. on regulating traffic toll fees based on traffic volume/pollution. And many modern products, like hybrid cars, contain software. To win the fight against climate change, fast diffusion of green technology is needed. Not only policy makers know this, patent trolls know this too.

EPO, UNEP & ICTSD studied the role of patents in accessing green technology. In a podcast, Nikolaus Thumm, Chief Economist of the European Patent Office, said that the key facilitator of technology transfer is licensing. He mentions people giving away essential parts of their technologies.

Patent trolls are not known for giving away anything. Injunctions will give patent trolls excessive power. The high damages ACTA proposes will drive up the costs for diffusion of green technology. While the funds are already limited, for instance, the fight against AIDS seems lost, due to lack of money. The same may happen with diffusion of green technology. The other earlier mentioned heightened civil enforcement requirements will restrict government flexibility, impede innovation and slow the development and diffusion of green technology as well. The heightened damages may invoke an accelerated patent arms race, making the problems worse.

Unconsidered in ACTA is the situation presented in matters of public health surveillance, crisis management, civil and environmental response and related situations where cross-jurisdiction information exchange and the data associated therewith could constitute "infringing" activities. Under ACTA, both information and technology associated with data collection, aggregation, assembly and transmission and analysis could be impaired greatly enhancing the complexity of responding to events like SARS, the Avian Influenza and crisis response to natural and manmade disasters.

ACTA also evidences a clear lack of awareness on the manner in which green technology in the energy and infrastructure sectors operate. The majority of systems (for example, wind turbines, water turbines, and solar collectors) rely on cross-border up-time-management software and systems. ACTA explicitly and adversely impacts the ability to transmit grid and local data, operate feedback mechanisms to energy suppliers, and operate security protocols across international rail, air, and shipping infrastructure applications. Once again, in an effort to be responsive to the media industry, a far larger component of the global IT infrastructure is being overlooked. This, in the short term, will create unintended liabilities and, in the long term, like we’ve seen in the flow of energy from Russia into Europe, may be the source of highly politicized controversy and impairment.

Competitive advantage

ACTA will give a competitive advantage to US businesses

ACTA will give a competitive advantage to United States businesses who will enjoy a more flexible system. First, since the US sees ACTA as a voluntary agreement. Second, the US will exclude patents from the scope. Third, the US has a more flexible copyright system.

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. We see this as a strategical mistake.

The TACD points to the issue of binding versus voluntary:

ACTA is a legally binding treaty for the EU and EU member states but only a voluntary global benchmark for the US. While the EU considers it a legal obligation, the US considers ACTA a "voluntary agreement" that despite clearly contradicting a number of US laws will have no legal impact in the US. Therefore, ACTA will give a competitive advantage to US businesses who will enjoy a more flexible system, for example with the US "fair use" of copyrighted material, while European innovation, especially SMEs will be constrained by the binding obligations of ACTA and other new EU legislation that will increase costs and risks in Europe with regards to copyright enforcement. The US Supreme Court has recently ruled that a law very similiar to ACTA that established very high damages and penalties for IP violations was unsconstititional. (end TACD)

Note that the US did not ratify the Convention of Vienna on the law of Treaties.

In the US, the Congressional Research Service (CRS) found inconsistencies with US law. The CRS also observes that ACTA, as an executive agreement that reportedly will not be submitted to Congress for approval, does not reduce, constrain , or otherwise impact the authority and prerogative of Congress to enact measures that change federal law. The US considers itself not bound by ACTA, while the EU will be bound by ACTA. For this reason, scrutiny should be more strict in the EU.

Will ACTA shift the competitive advantage to China?

In 10 to 20 years, the Anti-Counterfeiting Trade Agreement (ACTA) may give China a competitive advantage over the EU. ACTA codifies an overcompensation of rights owners in an international agreement. China is building up a massive patent portfolio. When the competitive advantage shifts to China, the EU may like to assess its patent policy. But, after signing ACTA, the EU will have no way to reform its intellectual property rights enforcement regime.

In November 2010 the State Intellectual Property Office of China published a document called the "National Patent Development Strategy (2011-2020)". The New York Times quotes David J. Kappos, director of the United States Patent and Trademark Office, pointing to the Chinese targets for 2015 and calling them "mind-blowing numbers". An October 2010 Thomson Reuters research report forecasts that China would surpass the United States in patent filings in 2011. China also wants to double the number of patents that its residents and companies file in other countries. The NY Times observes that China’s strategy is guided and sponsored by the state, and asks whether that should be a source of concern for the United States, and perhaps a trade issue?

In a post called "China joins the patent trolls; wake up America", John Bennett comments: "If you are behind in the patent race, file like mad and be prepared to litigate." He adds that this competitive challenge will force the rich developed countries to assess its patent policies.

Parties may exclude patents from the scope of ACTA. The United States will keep its options open. The US, long time ardent supporter of stronger enforcement, will exclude patents from the scope of ACTA. This will give the US the freedom to reform its patent enforcement regime. China, India and Brazil may never sign ACTA, keeping their options open. The EU will not exclude patents from the scope of ACTA. The EU limits its options, will not be free to reform its patent enforcement regime. It is a strategical mistake to accept more obligations than other parties.

With ACTA, the Commission follows a short term policy, disregarding future effects.

With ACTA, the industrialised countries try to strengthen their competitive advantage over the emerging economies. The United States is mainly interested in protecting copyright and trade marks. The EU is mainly interested in better protection for geographical indications (Champagne, Parma cheese).

ACTA introduces the entire market value rule which systematically results in the overcompensation of patent owners relative to their inventive contributions to society. ACTA's heightened damages go beyond current EU law. In the TRIPS agreement, damages are based on adequate compensation. The EU IPR Enforcement Directive (IPRED) uses damages appropriate to the actual prejudice suffered, including lost profits. ACTA's damages may include the value of the infringed goods or services measured by the market price, or the suggested retail price. Suggested retail price is higher than actual prejudice. ACTA codifies harmful provisions in international rules and consequently prevents domestic reform.

See also: China Could Game the U.S. in Intellectual Property and Let’s Compete on Innovation Rather Than Patents

Impact assessments

In an Answer given by Mr De Gucht on behalf of the Commission on Parliamentary questions 27 September 2010 E-4292/2010, De Gucht states: "Regarding the conduct of an impact assessment of the implementation of ACTA, the Commission notes that, since it is bound not to go beyond the EU acquis it has based its assessment of the impact of ACTA on the studies made for the 2004 Directive on the enforcement of Intellectual Property Rights (Directive 2004/48/EC(2)) and for the 2006 proposal for a directive on criminal enforcement of IPR (COM(2006)168 final) (not adopted)."

The Commission disregards that the EU can change its legislation, but will depend on others to change ACTA. ACTA codifies harmful provisions in international rules and consequently prevents domestic reform.

The impact assessments do not assess possible negative effect on ICT, access to medicine and diffusion of green technology.

The impact assessments do not assess the effects of China's ambitious patent program. Assessment are still te be made.

Food technology is covered by patents as well and diffusion of food technology, to fight hunger in the world, and also to solve problems caused by climate change, will be impacted by the inclusion of patents in ACTA. Diffusion of food technology has different characteristics than diffusion of green technology and medicine. It deserves its own assessment.

Criminal measures

ACTA also includes criminal measures. ACTA can be used to criminalise newspapers revealing a document, office workers forwarding a file and private downloaders; whistle blowers and weblog authors revealing documents in the public interest and remixers and others sharing a file if there is an advantage. This advantage may be indirect, a concept we believe to be too unclear to incorporate in criminal law.

Regarding ACTA's criminal measures, Korff and Brown conclude: "In our opinion, ACTA, by not including a de minimis exception to its compulsory and draconian enforcement regime, fails to ensure adequate protection of the right to freedom to obtain and disseminate information, the right to freedom from unreasonable search and arrest, the right to inviolability of the home, and the right to the peaceful enjoyment of one’s possessions, and thus violates those rights."

See our analysis at our blog.

ACTA Committee

ACTA will create an ACTA Committee, which anticipates future amendments to ACTA. KEI notes: "Among other things, the ACTA Committee may adopt rules that 'include provisions with respect to granting observer status,' as well as for 'any other matter the Committee decides necessary for its proper operation.' Requests to include language that the ACTA would operate in an open, inclusive and transparency manner were ignored."

Further analyses

See also our extended analysis

Media Piracy in Emerging Economies, edited by Joe Karaganis. Media Piracy in Emerging Economies is the first independent, large-scale study of music, film and software piracy in emerging economies, with a focus on Brazil, India, Russia, South Africa, Mexico and Bolivia. http://piracy.ssrc.org

Opinion of European Academics on ACTA: "Contrary to the European Commission’s repeated statements and the European Parliament’s resolution of 24 November 2010, certain ACTA provisions are not entirely compatible with EU law and will directly or indirectly require additional action on the EU level." They invite "the European institutions, in particular the European Parliament, and the national legislators and governments, to carefully consider the above mentioned points and, as long as significant deviations from the EU acquis or serious concerns on fundamental rights, data protection, and a fair balance of interests are not properly addressed, to withhold consent." http://www.iri.uni-hannover.de/acta-1668.html

European Commission’s services comments to the European Academics’ Opinion on ACTA: http://trade.ec.europa.eu/doclib/docs/2011/april/tradoc_147853.pdf

The European Commission’s services comments to the European Academics’ Opinion on ACTA are very weak. In one case, the Commission actually even states it insisted ACTA would go further than current EU legislation. See: FFII: The EU Commission lacks basic reading skills: http://acta.ffii.org/wordpress/?p=598

A study commissioned by the European Parliament INTA committee evaluated the prior discussion, and concluded that ACTA indeed goes beyond the current EU legislation: "for those European Parliamentarians for whom conformity with the EU Acquis is sine qua non for granting consent, this study cannot recommend that they provide such consent to ACTA as it now stands." http://www.erikjosefsson.eu/sites/default/files/DG_EXPO_Policy_Department_Study_ACTA_assessment.pdf

See also FFII comments on the INTA study: http://acta.ffii.org/?p=681

Korff and Brown, fundamental rights experts, regarding damages: "In our opinion, here too ACTA is deficient: without express clarification to the effect that damages awarded to right holders must be a reasonable reflection of actual loss, equitably assessed by a court (rather than an exaggerated assessment based on an unchallengeable but rigged formula), the Agreement violates both the right to property and the right to a fair (civil) trial of the defendants."

Korff and Brown regarding criminal measures: "In our opinion, ACTA, by not including a de minimis exception to its compulsory and draconian enforcement regime, fails to ensure adequate protection of the right to freedom to obtain and disseminate information, the right to freedom from unreasonable search and arrest, the right to inviolability of the home, and the right to the peaceful enjoyment of one’s possessions, and thus violates those rights."

Douwe Korff & Ian Brown, Opinion on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights, 2011: http://rfc.act-on-acta.eu/fundamental-rights

Internet Society: http://www.isoc.org/internet/issues/acta.shtml

Oxfam Statement regarding ACTA and Public Health: "ACTA will undoubtedly impact access to affordable medicines in the EU and other signatories by curbing generic competition. There are great concerns that ACTA's impact will extend beyond those countries that initially sign the Agreement, potentially undermining access for millions of patients in developing countries who depend on affordable, quality generics." http://www.oxfamsol.be/fr/IMG/pdf/Oxfam_ACTA_analysis_FINAL.pdf

Public Citizen regarding access to medicine. Public Citizen raised concerns that the purported benefits of ACTA for public safety would be slim at best. Meanwhile, ACTA's opportunity cost for more effective measures against unsafe products could be significant. Further, ACTA may impose direct costs on public health, by creating uncertainty and financial disincentives for the shipping of generic medicines. Public Citizen strongly advises a deeper and more considered legal review of ACTA. http://www.citizen.org/documents/Letter-to-Members-of-the-Committee-on-Legal-Affairs-on-the-ACTA.pdf

The Greens / EFA group commissioned study on ACTA and Access to Medicines. This study by Sean Flynn with Bijan Madhani concludes that ACTA increases the risks and consequences of wrongful searches, seizures, lawsuits and other enforcement actions for those relying on intellectual property limitations and exceptions to access markets, including the suppliers of legitimate generic medicines. This, in turn, is likely to make affordable medicines more scarce and dear in many countries. http://rfc.act-on-acta.eu/access-to-medicines

A Trade Barrier to Defeating AIDS, by Tina Rosenberg: http://opinionator.blogs.nytimes.com/2011/07/26/a-trade-barrier-to-defeating-aids/

FFII regarding green technology: An FFII analysis shows ACTA's heightened measures may hinder development and availability of medical equipment, diagnostic methods and instruments; will restrict government flexibility, impede innovation and slow the development and diffusion of green technology. http://acta.ffii.org/?p=675

DRAHOS, P., with BRAITHWAITE, J., Information Feudalism, Who Owns the Knowledge Economy?, Earthscan Publications Ltd, 2002 http://www.anu.edu.au/fellows/pdrahos/books/Information%20Feudalism.pdf

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

FFII blog: http://acta.ffii.org

European Digital Rights initiative booklet on ACTA: http://www.edri.org/files/acta-bklt-p2s.pdf

acta/Analysis (last edited 2013-04-15 08:05:00 by mages)

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