Free Trade Agreements

The EU and South Korea Free Trade Agreement

The EU and South Korea Free Trade Agreement was implemented on July 2011 in an effort to make it easier for EU and Korean companies to trade. It has been suggested that many of the provisions are very similar to those of ACTA.

Damages

Article 10.50-52 of the EU-Korea FTA deals with damages and states that each party shall ensure that judicial authorities may:

Take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the right holder by the infringement.

There is a criticism surrounding how suspected infringers are expected to be punished for “moral prejudice” suffered, a phrase undefined by the FTA.

Article 1.41 outlines how remedies should include "expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements." The criticism of this provision is found as this suggests that speed rather than accuracy and fairness is the focus of a prosecution.

ISP Liability

This area caused Kader Arif to resign while the EU dealt with ACTA because he felt that the provision went "too far, reintroducing the concept of liability of ISP’s, clearly excluded in EU legislation". That is to say, ACTA allowed ISP’s to be liable for their user’s illicit file sharing and many disagreed with this.

Criticism arises as Sub Section C Article 10.63 of the EU/Korea FTA states, after defining a service provider as a provider of transmission, that:

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, the Parties shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; does not select the receiver of the transmission; and does not select or modify the information contained in the transmission.

Although there are clear exemptions for service providers here, there will clearly be instances where the service providers have to accept liability for the actions of their users.

There is a massive issue with this, because Article 27.4 of ACTA was strongly opposed, as it set out that Parties could make provision for orders to online service providers to "disclose expeditiously to a rights holder information sufficient to identify a subscriber whose account was allegedly used for infringement". Although nowhere in the EU/Korea Agreement explicitly mentions an ISP providing the identity of a subscriber, there is the danger that if ISP’s can be held to account, they will be inclined to disclose private information in order to prevent a rights holder chasing up the ISP in question.

EU / Canada Agreement

Main article: CETA

CETA is a Free Trade Agreement currently being negotiated between the EU and Canada and according to sources, the agreement will be signed by the end of 2012. Again, there has been widespread criticism surrounding similarities between a leaked version of the agreement and ACTA.

EU / Singapore Free Trade Agreement

Negotiations were recently concluded between the EU and Singapore to implement a Free Trade Agreement. When the Government was asked what benefits this agreement would potentially bring to British exporters, Lord Green of Hurstpierpoint stated that work is still ongoing to assess benefits, but also that the agreement

includes a high level of intellectual property rights protection. This will, for example, offer better remuneration rights for certain creative activities.

EU / Japan Free Trade Agreement

The EU proposed in 2012 to initiate discussions with Japan regarding a free trade agreement. The negotiations will tackle a number of issues, including intellectual property.

EU / US Free Trade Agreement

An FTA between the EU and US has been touted, with negotiations due to begin later this year. Ahead of the FTA, European Economics Commissioner Olli Rehn suggested that "such a deep FTA would have to include the protection of intellectual property and an effective mutual recognition arrangement."

Upcoming FTAs

Juan Manuel Barrosso recently signalled the EU's intention to initiate discussions with a number of states in Asia over Free Trade Agreements, including India, Malaysia and Vietnam. Meanwhile, Karel de Gucht spoke of the 'scoping process' under way between the EU and Thailand, with a view of launching negotiations in spring 2013.