Notes for a consumer perspective on ACTA text

Official ACTA text from a consumer perspective: a few ideas

1. Consumers demand that the Anti-counterfeiting trade agreement limits its scope to counterfeiting as defined by international law.

It is imperative for consumer protection that ACTA clearly defines what “counterfeiting” means as expressed by international law in TRIPS. ACTA should only refer to trademark protection 1 and should not include copyright nor patents. Consumers are in favour of measures that confront commercial fraud, especially when it affects public safety and health, the quality of consumer products or the false representation of a trademark. Counterfeiting is “the practice of falsely claiming to be an authorized product of another firm, including but not limited to the use of another firm’s mark to deceive the public” (http://bit.ly/d0eGK7). Consumers consider that “Pirated copyright goods” 2 should not be a part of ACTA as it is a very different phenomenon not to be confused with “counterfeiting.” Counterfeiting, that can really be dangerous for consumers, should not be mixed up with the complex issues of copyright piracy or patent infringement.

2. Consumers request that patents be excluded from ACTA to avoid higher prices and fewer innovative products.

The inclusion of patents in ACTA would increase the price of key consumer products by erecting new costly legal barriers to competition and innovation. The new enforcement measures proposed on patents would increase the legal costs and risks of placing new products in the market by raising possible legal sanctions and economic penalties. Innovation could clearly be “chilled” if new disproportionate and harsh enforcement proposals were approved. These proposed measures could also be used by some countries as part of protectionist policies against the entry of competitive goods from countries in the South which could also raise prices. Flexibilities and exceptions to intellectual property rights that favour lower prices of essential goods for consumers worldwide, such as medicines, could also be threatened by ACTA.

3. Consumer protection demands a clear definition of “commercial scale” and measures that only combat acts of “willful criminal intent”.

EU officials have insisted on “leaving it open for judicial interpretation” the term included in ACTA about persecuting violations of IP of “commercial scale”. By leaving this open in an ambiguous way individual consumers could suffer penalties and harassment because “commercial scale” can be interpreted as the “accumulation of individual acts” as opposed to “willful criminal intent” planned and organized on a large scale. Internet file-sharing or other non-commercial actions by individuals should not in any way, directly or indirectly, be subject to any enforcement measures in ACTA. Consumer protection demands textual clarity and not just political declarations on this issue.

4. Consumer privacy, data protection and freedom of expression must be guaranteed in face of Internet policing and filtering.

“Intermediary liability” of service providers, mandated directly or encouraged indirectly, could deprive consumers of the neutrality of Internet services and legitimize the cutting off of internet service without prior judicial due process. Consumers consider privacy and data protections as a fundamental rights that must take priority over any measure of Intellectual Property protection. Consumers also reject any measure that restricts freedom of expression except in cases of public security and health.

DAVID HAMMERSTEIN, TACD


1 “counterfeit trademark goods” shall mean any goods, including packaging, bearing without authorization a trademark which is identical to the trademark validly registered in respect of such goods, or which cannot be distinguished in its essential aspects from such a trademark, and which thereby infringes the rights of the owner of the trademark in question under the law of the country of importation;
You find them in footnote of article 51 of the TRIPS agreement
Here: http://www.wto.org/english/tratop_e/trips_e/t_agm4_e.htm

2 “Pirated copyright goods” shall mean any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation

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