Anti Counterfeiting Trade Agreement Act
The Anti Counterfeiting Trade Agreement (ACTA) is a proposed agreement between a number of countries to improve enforcement of infringement against intellectual property rights (IPRs). The agreement does not propose new intellectual property rights. Rather, it focuses upon improved enforcement with international standards as to how to proceed against large scale infringements. The goals will be reached through international cooperation, legal framework and enforcement.
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Negotiating Parties
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The agreement is still under negotiation as of 2010. The United States, European Union, Switzerland, Canada and Mexico are participating countries. Australia, Japan, Morocco, South Korea, Singapore and New Zealand are participating in the negotiations as well.
Draft of Negotiating Text
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The negotiating countries agreed upon a release of the text of the agreement in April 2010. The text is not the final agreement and contains bracketed passages on items where consensus has not been reached. These bracketed items cover a range of subjects, including specifying infringement in terms of copyright or trademark, defining domestic authority and determining damages from infringement or counterfeiting.
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Disclaimers
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Article 1.2 of the draft allows participating countries to implement more stringent measures in their domestic laws. A country may determine the methods of implementation within its own legal system. There is no agreement to distribute resources between countries for enforcement of the agreement. Article 1.3 notes that the Agreement will not preempt any participating country's laws or regulations regarding intellectual property.. Countries are not required to apply measures where intellectual property is not protected under their laws.
General Obligations Related to Enforcement
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Measures adopted will be equitable and fair without unnecessary cost or complexity, unwarranted delays or time limits. Countries shall take into account proportionality between the seriousness of the penalty and the seriousness of the infringement.
Enforcement
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In civil proceedings, the country shall have authority to order an injunction preventing infringed material from entering a channel of commerce. Injunctions may be issued against third parties that infringe upon intellectual property rights as well. The country shall have authority to order the infringer, where it is knowingly infringing, to pay damages to compensate for loss due to infringement. In the case of the infringer not knowingly infringing, the country may order the infringer to pay a predetermined amount. In some cases, materials that have been infringed upon or used to implement infringement may be ordered destroyed by civil authority without compensation. Some of the language of Article 2.3 is still under negotiation.
Determination of Infringement and Fees
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Under Article 2.10, each country will maintain or adopt a procedure by which competent authorities will be able to determine if an action is infringement of intellectual property within a reasonable length of time. Fees related to application, storage or destruction of items related to the procedures shall not be so unreasonable as to deter the use of the procedures. Article 2.14 addresses criminal actions regarding infringement. A number of elements in determining infringement have not been finalized in this section.
International Cooperation
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The Agreement notes the need for each country to recognize the importance of cooperation in spite of the location of the right holder or the origin of the infringing goods. Countries are not required to disclose confidential information contrary to their laws or regulations. Countries shall help in a mutually agreeable manner in technical assistance and developing abilities needed for the enforcement of the agreement in other participating countries. Each country shall make information public regarding administration of intellectual property rights through several options outlined in the Agreement. An Oversight Committee will be responsible for such actions as observers and for transparency.
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References
Resources
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