Rechtsanwalt, Legal Director
Out-Law News | 28 Sep 2011 | 3:23 pm | 3 min. read
Japan has announced that negotiators of the Anti-Counterfeiting Trade Agreement (ACTA) will congregate at the country's Ministry of Foreign Affairs on Saturday and those countries that have "completed the relevant domestic processes" will sign the agreement.
ACTA is a voluntary international treaty that seeks to provide standardised international enforcement of intellectual property (IP) rights. The agreement was negotiated in secret by the Governments of a collection of countries over the past three years.
ACTA was negotiated by Australia, Canada, the European Union and its Member States, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States.
Negotiations on behalf of the EU member states were conducted by the European Commission, but a nominated signatory of the agreement has still to be picked and the agreement itself approved by the European Parliament, a Commission spokesperson told Out-Law.com. This process needs to be completed before ACTA can be signed on the EU's behalf, she said.
"The EU has not yet completed its internal procedures authorising the signature, therefore it will not be signing ACTA at this event," the Commission spokesperson said in a statement. "Neither will Mexico and Switzerland, since they did not conclude their domestic proceedings."
"For the EU, the domestic process for signature is that the Council [of Ministers] adopts a decision authorising a EU representative to sign ACTA. Since this required the translation of the treaty in all the EU languages, such decision has not yet been adopted. It may still require a couple of months for the EU to be able to sign ACTA. After the signature, the European Parliament will have to vote its consent of ACTA," it said.
According to a statement from the Japanese Government the EU will have until 1 May 2013 to sign the agreement.
"On Saturday, October 1, the Ministry of Foreign Affairs of Japan will hold the signing ceremony for the Anti-Counterfeiting Trade Agreement (ACTA) at Iikura Guest House, Ministry of Foreign Affairs," the Japanese Ministry of Foreign Affairs said in a statement.
"The signing ceremony will be attended by the representatives of all the participants in the ACTA negotiations, and those that have completed relevant domestic processes will sign the agreement. The agreement is open for signature until May 1, 2013," the statement said.
The ACTA 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.
Earlier this year the Japanese Government announced that the ACTA "was opened for signature" on 1 May.
The ACTA document (25-page / 231KB PDF), which has been published by the European Commission, encourages customs officers to help identify IP right violators and share the details with other countries. It also sets out that signatories of the agreement must make sure rights holders have access to "civil judicial procedures" in order to enforce their IP rights and that "judicial authorities" have the power to issue injunctions that prohibit infringers from further violation of rights.
In addition, signatories "shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale," ACTA said.
Criminal procedures and penalties should also be available "in cases of wilful importation and domestic use, in the course of trade and on a commercial scale, of labels or packaging," it 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 were 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.
However, the ACTA document has stated 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 said.
Rechtsanwalt, Legal Director