Out-Law News | 01 Jun 2011 | 10:25 am | 3 min. read
The Anti-Counterfeiting Trade Agreement (ACTA) is a voluntary international treaty that seeks to provide standardised international enforcement of IP rights. ACTA was negotiated in secret by the Governments of a collection of countries over the past three years.
The treaty has been controversial because of secrecy surrounding its negotiation; because it operates outside of existing trade bodies the World Trade Organisation (WTO) and World Intellectual Property Organisation (WIPO); and because earlier drafts reportedly sought to impose measures which could interfere with individuals' rights.
ACTA has been finalised since April and has been open to countries to adopt into since the start of May, the Japanese Ministry of Foreign Affairs said.
"The Anti-Counterfeiting Trade Agreement (ACTA) was opened for signature on May 1, following its adoption by participants in its negotiations on April 15. The Government of Japan will receive signatures as the Depositary of this Agreement," the Japanese Ministry of Foreign Affairs has said in a statement.
"The Government of Japan looks to continue efforts with the other concerned countries with a view to bringing the ACTA into effect as soon as possible," the Japanese Ministry said.
The ACTA document, published by the European Commission, said that effective enforcement of IP rights is "critical" to international economic growth.
"The proliferation of counterfeit and pirated goods, as well as of services that distribute infringing material, undermines legitimate trade and sustainable development of the world economy, causes significant financial losses for right holders and for legitimate businesses, and, in some cases, provides a source of revenue for organised crime and otherwise poses risks to the public," the ACTA document said (25-page / 231KB PDF).
A Foundation for a Free Information Infrastructure (FFII), a body that has scrutinised the development of ACTA, said in a blog that this version of the agreement did not differ greatly from a previous draft published late last year.
The ACTA encourages customs officers to help identify IP right violators and share the details with other countries.
"Where a Party seizes imported goods infringing an intellectual property right, its competent authorities may provide the Party of export with information necessary for identification of the parties and goods involved in the exportation of the seized goods," the ACTA said.
"The competent authorities of the Party of export may take action against those parties and future shipments in accordance with that Party’s law," the ACTA said.
Countries should "share information with the competent authorities of other Parties on border enforcement of intellectual property rights, including relevant information to better identify and target for inspection shipments suspected of containing infringing goods," the ACTA said.
In January a group of 27 European law academics criticised ACTA and urged European governing bodies to reject it. The group said that ACTA's criminal enforcement measures protecting IP rights was unlawful.
"Within the EU legal framework there are currently no provisions on criminal enforcement of intellectual property rights. ACTA, therefore, is by nature outside the EU law and would require additional legislation on the EU level," the academics said at the time.
Existing IP rights frameworks exist, such as the WTO's TRIPS (Trade Related aspects of Intellectual Property Rights) agreement, but critics are concerned that ACTA does not provide the same safeguards that protect accused infringers' rights.
"The ACTA conveniently does not include provisions comparable to those of the TRIPS Agreement that provide protection to accused infringers, such as time limits for preliminary injunctions during which right holders must act to initiate cases on the merits, and the right to be heard in cases initially acted upon [where their side of the case was not heard]," the Intellectual Property Watch news group said in a report.
"The ACTA negotiating countries have sought to justify the 'nonappearance' of protective provisions on grounds that the Parties will maintain their obligations under the TRIPS Agreement," the group said.
"In a strict sense, that may be correct, but it should be recalled that the TRIPS Agreement is not directly effective in the law of the European Union or the United States, and private parties do not have the right to directly challenge the consistency of national IP law with the TRIPS Agreement before the courts," the group said.
"ACTA has several features that raise significant potential concerns for consumers’ privacy and civil liberties, for innovation and the free flow of information on the Internet, legitimate commerce, and for developing countries’ ability to choose policy options that best suit their domestic priorities and level of economic development," the Electronic Frontier Foundation, a digital civil liberties campaign group, said in a statement.
ACTA was negotiated by, amongst others, Australia, Canada, the US, Japan, Korea, Morocco, New Zealand, Mexico, Singapore and, on behalf of EU countries, the European Commission.
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