Amend ACTA: Damages

AMENDMENT

In Chapter Two, Section 1, Art. 2.2.1, DELETE the crossed out text below.

Each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of {intellectual property rights} {copyright or related rights, or trademarks}, 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 {US/Can:  for copyrights and related rights infringements and trademarks counterfeiting}, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price.

JUSTIFICATION

By requiring the judicial authorities to consider "any legitimate measure of value submitted by the right holder," including specifically "the suggested retail price," this Article in ACTA would be contrary to national statutes that provide for different standards, such as limits on damages to reasonable royalties. The use of "the suggested retail price" is an aggressive standard for liability, particularly for some types of copyright infringement cases, and clearly inappropriate for some cases. One obvious area where the standard will present problems are the cases where governments seek to liberalize access to orphaned copyrighted works. If applied to patent cases and other types of intellectual property rights, it would be contrary to a number of U.S. statutes, including the new health care reform bill provisions on generic biologic medicines, and many other cases, including some cases where zero remuneration is set out in the statute. If the standard is applied to patent cases, it will also run directly contrary to the proposals in the US Congress to limit the discretion of plaintiffs to present certain methodologies in terms of damages.

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