IP Chapter in the EU-Korea free trade agreement essentially flawed

By EDRi · January 13, 2010

This article is also available in:
Deutsch: [IP-Kapitel des EU-koreanischen Freihandelsabkommens ist im Wesentlichen fehlerhaft | http://www.unwatched.org/node/1653]

The Foundation for a Free Information Infrastructure (FFII) calls upon the
EU Parliament and member states to remove the intellectual property rights
chapter from the EU – Korea Free Trade Agreement. According to the FFII
analysis, the free trade agreement is a threat to software companies,
companies that use software, and free software projects; this undermines
innovation, competitiveness and legal certainty.

In October 2009, after more than two years of secret negotiations, the EU
and the Republic of Korea initialled their free trade agreement. The
agreement awaits ratification by the EU Parliament and member states.

The free trade agreement contains strong measures against patent
infringements. It provides injunctions, high damages, seizures, destruction
of production materials and removal of online software repositories. A
suspicion may be enough for seizures and injunctions. An allegation may be
enough to freeze assets.

FFII analyst Ante Wessels comments: “These strong measures may be justified
against hard core counterfeiters. They are not justified against software
developers. Software patents are so broad in scope, doubtful in validity,
and so numerous that unintentional infringement is unavoidable in the normal
course of business. Therefore, competitors and patent trolls can always find
a stick to hit software companies, companies that use software and free
software projects. The whole sector is at risk.”

The free trade agreement also contains border measures against patent
infringements. Ante Wessels: “With the numerous software patents out there,
all software products and all products containing software may infringe
patents. An allegation is enough to have them seized at the border. Then
they stay seized until a civil court case made clear whether a patent was
infringed or not. This gives competitors and patent trolls enormous power –
how many small and medium enterprises, and free software projects, have the
money to defend against this? It is the contrary of stimulating free trade.”

The free trade agreement is based on existing EU legislation. “Exporting EU-
style enforcement legislation to foreign trading partners is an (un)official
goal of EU policy”, professor Annette Kur, Max Planck Institute Munich,
remarked in a presentation in December. She added: “If and where legislation
is (partly) flawed, export is no recommendable option.”

The severe consequences of flawed enforcement legislation were on display in
the recent EU seizures of life saving medicine meant for developing
countries. After these seizures have became known, the Dutch Minister for
Developmental Aid, Bert Koenders, said that he wanted to change the EU rules
on the enforcement of intellectual property rights, and that he would even
like to violate these rules.

Ante Wessels commented: “The seizures of life saving medicine and the
treatment of software developers as hard core counterfeiters are two
consequences of flawed EU legislation. Europe should be well aware that if
we export this flawed legislation, the agreement will be binding. We will
not be able to repair our own legislation anymore.”

EU – Korea Free Trade Agreement (15.10.2009)

FFII analysis (7.01.2010)

Presentation professor Annette Kur, Max Planck Institute Munich (18.12.2009)

EU seizures of life saving medicine meant for developing countries

Dutch Minister for Developmental Aid, Bert Koenders (25.06.2009)

EDRi-gram: Secret IPR measures in EU – South Korea trade agreement

(Thanks to Ante Wessels – FFII)