European Commission Paints Itself Into ACTA Corner 90
Halo1 writes "Last week, the European Commission published a rebuttal to an extensive and strongly condemning opinion document about ACTA by prominent European academics. Ante Wessels from the FFII went through the Commission's reply and discovered that after correcting the mistakes they made, they actually confirm the opinion they were trying to refute. The Commission primarily appears to suffer from a lack of reading comprehension, amnesia regarding what it said earlier, and not being fully aware of its competences."
here's the text (Score:5, Informative)
May 1, 2011
By Ante [ffii.org]
In January 2011, prominent European academics issued an âoeOpinion of European Academics on Anti-Counterfeiting Trade Agreement [uni-hannover.de]â (ACTA). The academics invite the European institutions, in particular the European Parliament, and the national legislators and governments to withhold consent of ACTA, âoeâ¦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 addressedâ.
In April 2011, the European Commissionâ(TM)s services put on-line comments to the European Academicsâ(TM) Opinion on ACTA [europa.eu]. The Commission denies ACTA is incompatible with EU law.
The Commission fails to make its point in a convincing way. The Commission shows a lack of basic reading skills, does not address points raised by the academics and fails to reason in a logical way. Regarding the border measures, the Commission actually agrees with the academics. The Parliament should ask the European Court of Justice an opinion on ACTA.
It is too much work to address all the flaws in the Commissionâ(TM)s notes. I will give some examples.
ACTAâ(TM)s damages are higher than EU lawâ(TM)s damages
The academics wrote: âoeSome of the factors mentioned at the end of the provision are not provided for in art. 13.1 Directive 2004/48. These factors should not be adopted in European law since they are not appropriate to measure the damage. âoeThe value of the infringed good or service, measured by the market price, [or] the suggested retail priceâ, as indicated in art. 9.1 ACTA, does not reflect the economic loss suffered by the right holder.â
The Commission states: âoeThere is no conflict between article 9 of ACTA and article 13 of Directive 2004/48/EC. Both provisions refer to ways in which courts can come to the determination of fair damages for the injured party.â
Damages in EU law are based on economic loss suffered by the right holder. The academics show that ACTA goes beyond that. The Commission just calls them both âoefairâ, and sees no difference. This is like saying: âoebig cars and small cars are both nice cars, so there is no difference.â But with cars and with damages, it is not only important both are cars or damages, the size is relevant as well. ACTA exceeds the level of damages in EU law. The Commission does not address the size aspect raised by the academics.
Bringing different things under the same category does not make them the same. Fines and death penalty are both deterrent, they are not the same.
Going beyond economic loss suffered by the right holder is not âoefairâ. It disproportionally hurts for instance startup companies in conflict with major patent holders. The Commission and ACTA advocate seeing damages based on retail price as âoefairâ. Unbalanced enforcement measures may heighten market entrance risks for innovators. Startup companies are often confronted with patent minefields. Even a mere allegation of infringement may easily lead to market exclusion. Startup companies often do not have enough resources to litigate. ACTA is biased against startup companies, the heightened damages hurt innovation.
The Commission states: âoeThe examples given in article 9.1 of ACTA and highlighted by the authors of the Opinion are not mandatory for the ACTA Parties (cf. the provision says âoemay includeâ).â
But this âoemayâ in article 9.1, is permissive towards the rights holders, it refers to âoeany legitimate measure of value the right holder submitsâ. Article 9.1 is not permissive towards the ACTA parti
Re:here's the text (Score:5, Informative)
so let's see. you are not a subscriber so no early views...
Every registered user can, after logging in, look at http://slashdot.org/firehose.pl [slashdot.org] (not the static page you get redirected to in case you're not logged in) and see all stories that are submitted.
yet you wrote up all of this complete with links in the 4 minutes that elapsed between the story's posting and the submission of your own post.
Actually, he simply posted the contents of the main article [ffii.org] referred to in the post, because the server hosting it has been slashdotted (I should have used an nyud.net link). And the reason he had a local copy is probably because he's on the same mailing lists as I am where the article was first announced.
And he didn't submit the article, I did.