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ACTA Ready For Ratification

by Glen Shapiro,, New York

17 November 2010

Participants in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations have announced that the text of the agreement has been finalized and that, following legal verification of its drafting, it will be ready to be submitted to the participants’ respective domestic authorities for ratification.

There were a small number of issues that remained outstanding after the final round of negotiations in Tokyo last month but, after their resolution, the finalized text of the ACTA has now been released.

The participants have stated that the ACTA’s aim is to establish a comprehensive international framework that will assist parties to the agreement in their efforts to combat the infringement of intellectual property rights, in particular the proliferation of counterfeiting and piracy, which undermines legitimate trade.

It includes provisions on the enforcement of intellectual property rights (IPR), including provisions on civil, criminal, border and digital environment enforcement measures, robust cooperation mechanisms among the ACTA parties to assist in their enforcement efforts, and the establishment of best practices for effective IPR enforcement.

Participants in the negotiations, who together represent more than 50% of world trade, include Australia, Canada, the European Union (EU) and its member states, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States. Nevertheless, China, from which a large majority of the counterfeit and pirated items seized in the US are purported to be produced, has yet to show any interest in joining the ACTA.

After three years and many rounds of talks, largely held without officially release of any of the previous draft texts, the negotiators of the agreement obviously feel that they have made a significant breakthrough in the global control and enforcement of IPR.

However, during the process, with some countries known to advocate more stringent restrictions, there have been various misgivings as to the extent of the additional obligations the ACTA might still impose on market players, particularly internet service providers (ISPs), that, it was said, could be expected to become an “internet police force” and be liable for infringements taking place on their networks.

On the other hand, while the parties to the agreement are to ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of IPR, it has previously been stressed that the parties have recognized the need to ensure that measures and procedures to enforce IPR do not themselves become barriers to legitimate trade.

The measures adopted, it has been said, are an attempt to balance the rights and interests of all stakeholders and, in the digital environment, of the relevant copyright and trademark holders, internet service providers (ISPs) and users.

While the ACTA gives countries the right to order an ISP “to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where such information is being sought for the purpose of protecting or enforcing the right holder’s trademark rights or copyright”, it also requires that procedures "shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy."

The United States Chamber of Commerce, through its Global Intellectual Property Center, has applauded the finalization of the ACTA which they are optimistic will “enhance international cooperation among nearly 40 countries by establishing a meaningful and effective framework for the protection of IPR consistent with current laws,” but others are still examining the agreement’s lengthy text to perceive its possible pitfalls.

For example, digital rights groups have said that the ACTA is too broad an effort to enforce copyright laws, as different laws exist in different countries. The US Computer and Communications Industry Association has already pointed out that, as the agreement “seeks to implement US digital copyright laws in nations without copyright limitations and exceptions, this means US companies could face charges in other countries for practices that are entirely legal in the US.”

The buck now passes to a final decision on ratification of the ACTA in each participating country. While that process will be different in each country, the opinion has been expressed that the ratification of the ACTA in the US will not require the approval of Congress. However, that reading of the executive’s authority is open to some doubt and, if attempted, would doubtless be challenged.

TAGS: Morocco | business | trademarks | law | intellectual property | copyright | Australia | China | Mexico | Singapore | enforcement | agreements | internet | Canada | Korea, South | New Zealand | Switzerland | United States | regulation | trade | European Union (EU) | Japan | Europe

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