Comparison ACTA ESTA

Negotiations between the EU and Singapore on a free trade agreement started in March 2010. On 16 December 2012, EU Trade Commissioner Karel De Gucht and Singapore's Minister of Trade and Industry Lim Hng Kiang completed final negotiations on the EU-Singapore Free Trade Agreement (ESTA). The EU and Singapore released this text on 20 September 2013.

ESTA covers numerous issues, including protection of "intellectual property" in its chapter 11. Despite Commissioner Karel De Gucht having stated in front of the PE, speaking about TAFTA: “ACTA, one of the nails in my coffin. I’m not going to reopen that discussion. Really, I mean, I am not a masochist. I’m not planning to do that”, some ESPA articles are directly copied from ACTA.

Definition

ACTA Article 5 (k) pirated copyright goods means 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 in which the procedures set forth in Chapter II (Legal Framework for Enforcement of Intellectual Property Rights) are invoked;

ESTA Article 11.48 (d) “pirated copyright goods” means any goods which are copies made without the consent of the right holder or of a person duly authorised 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 domestic law of the Party where the goods are;

lawbox|title=Amendment 100|rate=-|1=Vive la liberté d'expression !|2=Vive la liberté d'expression ! d'entreprise

</noinclude>

Damages

ACTA Article 9 1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to order the infringer who, knowingly or with reasonable grounds to know, engaged in infringing activity to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement. In determining the amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

ESTA Article 11.4 1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to order the infringer who, knowingly or with reasonable grounds to know, engaged in infringing activity to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement. 2. In determining the amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

lawbox|title=Amendment 100|rate=-|1=Vive la liberté d'expression !|2=Vive la liberté d'expression ! d'entreprise

</noinclude>

Counter-argument:

These articles determine the amount of damages based on the false assumption that a shared file is a lost sale. Read the studies on file sharing we gathered.

DRM

ACTA Article 27 6. In order to provide the adequate legal protection and effective legal remedies referred to in paragraph 5, each Party shall provide protection at least against: (a) to the extent provided by its law: (i) the unauthorized circumvention of an effective technological measure carried out knowingly or with reasonable grounds to know; and (ii) the offering to the public by marketing of a device or product, including computer programs, or a service, as a means of circumventing an effective technological measure; and (b) the manufacture, importation, or distribution of a device or product, including computer programs, or provision of a service that: (i) is primarily designed or produced for the purpose of circumventing an effective technological measure; or (ii) has only a limited commercially significant purpose other than circumventing an effective technological measure. 7. To protect electronic rights management information, each Party shall provide adequate legal protection and effective legal remedies against any person knowingly performing without authority any of the following acts knowing, or with respect to civil remedies, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any copyright or related rights: (a) to remove or alter any electronic rights management information; (b) to distribute, import for distribution, broadcast, communicate, or make available to the public copies of works, performances, or phonograms, knowing that electronic rights management information has been removed or altered without authority.

ESTA Article 11.9 2. In order to provide the adequate legal protection and effective legal remedies referred to in paragraph 1, each Party shall provide protection at least against: (a) to the extent provided by its domestic law: (i) the unauthorised circumvention of an effective technological measure carried out knowingly or with reasonable grounds to know; and (ii) the offering to the public by marketing of a device or product, including computer programs, or a service, as a means of circumventing an effective technological measure; and (b) the manufacture, importation, or distribution of a device or product, including computer programs, or provision of a service that: (i) is primarily designed or produced for the purpose of circumventing an effective technological measure; or (ii) has only a limited commercially significant purpose other than circumventing an effective technological measure. [...] Article 11.10 1. To protect electronic rights management information, each Party shall provide adequate legal protection and effective legal remedies against any person knowingly performing without authority any of the following acts knowing or, with respect to civil remedies, having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any copyright or related rights. Such following acts are: (a) to remove or alter any electronic rights management information; (b) to distribute, import for distribution, broadcast, communicate, or make available to the public copies of works, performances, or phonograms, knowing that electronic rights management information has been removed or altered without authority.

lawbox|title=Amendment 100|rate=-|1=Vive la liberté d'expression !|2=Vive la liberté d'expression ! d'entreprise

</noinclude>

Counter-argument:

"Although DRM is supposed to help copyright owners by protecting digital content from illegal copying or distribution, it is controversial because DRM imposes restrictions on even legal users, and there are many industry practitioners who believe that the industry would be better off without DRM. [...] Our analysis suggests that, counterintuitively, download piracy might decrease when the firm allows legal DRM-free downloads. Furthermore, we find that a decrease in piracy does not guarantee an increase in firm profits and that that copyright owners do not always benefit from making it harder to copy music illegally." (Marketing Science, 2011).