Following the 11th and final round of the Anti-Counterfeiting Trade Agreement (ACTA) negotiations, held in Tokyo from September 23-October 2, trading partners representing more than fifty percent of world trade developed and released draft text for what will be the highest-standard plurilateral agreement ever achieved concerning the enforcement of intellectual property rights.
Process
The participants agreed to work expeditiously to resolve the small number of outstanding issues that require further examination in their own countries, with a view to finalizing the text of the agreement as promptly as possible. The draft Agreement will undergo final legal review and be released for review before participants sign. Signature will be followed by processes to approve the Agreement.
Participants
Participants in the negotiations included: Australia, Canada, the European Union (EU) represented by the European Commission and the EU Presidency (Belgium) and the EU Member States, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States of America.
Purpose
Consistent with the Administration’s strategy for intellectual property enforcement, ACTA establishes a state-of-the-art international framework that provides a model for effectively combating global proliferation of commercial-scale counterfeiting and piracy in the 21st century. The agreement also includes innovative provisions to deepen international cooperation and to promote strong enforcement practices. Together these provisions will help to protect American jobs in innovative and creative industries against intellectual property theft.
Guide to the October 6 Text
Page 2: Preamble. Items of note in this section include statements on the various challenges of counterfeiting and piracy that the parties seek to address, as well as references to the need to support international enforcement work and cooperation within relevant international organizations, and recognition of the Doha Declaration on the TRIPS Agreement and Public Health.
Page 3: Initial Provisions. Here the parties describe the nature and scope of the Agreement and its relationship to domestic laws. This section also includes a provision on privacy, as well as definitions of terms used in the Agreement.
Page 5: Legal Framework for Enforcement of Intellectual Property Rights. The parties agree to provide various legal means to enforce intellectual property rights.
• Section 1 (p.5) includes general obligations to provide effective enforcement procedures.
• Section 2 (p.6) provides for civil enforcement provisions dealing with issues such as damages, injunctions to stop further infringements, recovery of costs and attorneys’ fees, and destruction of infringing goods.
• Section 3 (p.9) provides for border measures (i.e. customs procedures) regarding both import and export shipments.
• Section 4 (p.12) provides for criminal enforcement, including
- requirements for criminal remedies, including clarification of what constitutes copyright piracy on a commercial scale;
- a requirement for criminal remedies for use or importation of labels for packaging of counterfeit goods;
- a provision on unlawful camcording of movies in theaters;
- commitments on seizure and destruction of fake goods, seizure of the equipment and materials used in their manufacture, and criminal proceeds.
• Section 5 (p.14) provides for enforcement of intellectual property rights in the digital environment, including
- A balanced framework that addresses the challenge of copyright piracy on digital networks while preserving fundamental principles such as freedom of expression, fair process, and privacy; and
- Requirements to provide legal regimes concerning circumvention of digital security features (i.e. technological protection measures);
Page 17: Enforcement Practices. The parties agree to promote practices that contribute to effective enforcement of IPRs, such as specialization, data collection and analysis, internal coordination, and stakeholder consultation. The section includes a provision on risk management at the border, as well as provisions on transparency, public awareness, and environmental considerations in the destruction of infringing goods.
Page 19: International Cooperation. The parties agree to cooperate to realize effective protection of IPRs. The section includes provisions on information sharing, as well as provisions on capacity building and technical assistance.
Page 20: Institutional Arrangements. The parties agree to establish a committee not only to review the operation of the Agreement, but to serve as a forum to discuss enforcement issues, as well as to handle any matters relating to the Agreement. Parties also agree to a mechanism for consultations on any matter affecting the implementation of the Agreement.
Page 22: Chapter Six - Final Provisions. The parties agree on matters concerning the signature and entry into force of the Agreement, and on other technical matters.
