ACTA vs. EU law
1. SECTION 1: CIVIL ENFORCEMENT
|EU position on ACTA||EU law|
Each Party shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. The Parties shall also ensure that the right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right.
EU: Each Party shall provide that its judicial authorities shall have the authority, at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right. An interlocutory injunction may also be issued, under the same conditions, against an intermediary whose services are being used by a third party to infringe an intellectual property right. Each Party shall also provide that provisional measures may be issued, even before the commencement of proceedings on the merits, to preserve relevant evidence in respect to the alleged infringement. Such measures may include inter alia the detailed description, the taking of samples or the physical seizure of documents or of the infringing goods.
The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.
At least with respect to works, phonograms, and performances protected by copyright or related rights, and in cases of trademark counterfeiting, in civil judicial proceedings, [EU/Can: As an alternative to paragraph 1,] each Party shall [EU/Can: may] establish or maintain a system that provides:
(a) pre-established damages; or
(b)presumptions for determining the amount of damages6sufficient [US/Can: to constitute a deterrent to future infringements and] to compensate [US/Can: fully] the right holder for the harm caused by the infringement.
|Article 13.2 IPRED|
2.Where the infringer did not knowingly, or with reasonable grounds know, engage in infringing activity, Member States may lay down that the judicial authorities may order the recovery of profits or the payment of damages, which may be pre-established.
(no mention of presumtions for determining amounts)
2. SECTION 2: CRIMINAL ENFORCEMENT SECTION
Each party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark infringement and copyright or related rights piracy on a commercial scale.
The provisions of this section shall apply to inciting, aiding and abetting the offences referred to in Article 1.
|Article 3 |
(the IPRED 2 directive was proposed in 2005 but never adopted – not part of the EU acquis)
Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences.
3. SECTION 4: INTERNET CHAPTER
|ACTA||E-Commerce / IPRED /|
|Article 2 section 4
3. Each Party recognize that some persons19 use the services of third parties, including online service providers,20 for engaging in copyright or related rights
(a) In this respect] each Party [US: shall [EU:22] provide limitations23 [EU: on the liability of] online service provider [EU: s] for infringing activities that occur by
(i) automatic technical processes, [EU: or]
(ii) the actions of the provider's users that are not initiated [EU: nor modified] by that provider and when the provider does not select the material, [EU: or]
(iii) [EU: the storage of information provided by the recipient of the service or at the request of the recipient of the service,] when, in cases of subparagraphs (ii) and (iii), the provider does not have actual knowledge of the infringement and is not aware of facts or circumstances from which infringing activity is apparent; and
|Article 12.1 e-Commerce|
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.
|[when exercising the activities as stipulated in paragraph 3(a)(ii) and/or (iii) the online service providers act expeditiously, in accordance with applicable law, to remove or disable access to infringing material or infringing activity upon obtaining actual knowledge of the infringement or the fact that the information at the initial source has been removed or disabled.]||Recital(46) e-Commerce|
In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned;
the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States' possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information.
|(b) Paragraph 3(a) shall not affect the possibility for a judicial or administrative authority, in accordance with the Parties legal system, requiring the service provider to terminate or prevent infringement, nor does it affect the possibility of the parties establishing procedures governing the removal or disabling of access to information.||Article 12.3 e-Commerce|
This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.
|When providers are acting accordance with this paragraph 3, the Parties shall not impose a general monitoring requirement.]||Article 15.1 e-Commerce|
No general obligation to monitor
Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
Each Party shall provide adequate legal protection against the circumvention of effective technological measures that are used by authors, performers or producers of phonograms in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances and phonograms, in appropriate cases of wilful conduct that apply to:
a) the unauthorized circumvention of an effective technological measure [US: that controls access to a protected work, performance, or phonogram] [EU:
b) the manufacture, importation, or circulation of a technology, service, device, product, component, or part thereof, that is: marketed or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure.
|Article 6 EUCD|
Obligations as to technological measures
1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
2. Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:
(a) are promoted, advertised or marketed for the purpose of circumvention of, or
(b) have only a limited commercially significant purpose or use other than to circumvent, or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures.
Each Party may provide for measures which would safeguard the benefit of certain exceptions and limitations to copyright and related rights, in accordance with its legislation.
|Article 6.4 EUCD|
Notwithstanding the legal protection provided for in paragraph 1, in the absence of voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned, Member States shall take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law in accordance with Article 5(2)(a), (2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject-matter concerned.
A Member State may also take such measures in respect of a beneficiary of an exception or limitation provided for in accordance with Article 5(2)(b), unless reproduction for private use has already been made possible by rightholders to the extent necessary to benefit from the exception or limitation concerned and in accordance with the provisions of Article 5(2)(b) and (5), without preventing rightholders from adopting adequate measures regarding the number of reproductions in accordance with these provisions.
The technological measures applied voluntarily by rightholders, including those applied in implementation of voluntary agreements, and technological measures applied in implementation of the measures taken by Member States, shall enjoy the legal protection provided for in paragraph 1.
The provisions of the first and second subparagraphs shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.
When this Article is applied in the context of Directives 92/100/EEC and 96/9/EC, this paragraph shall apply mutatis mutandis.
- Willful copyright or related rights piracy on a commercial scale is defined in the ACTA text to include: "significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain"