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Anti-Counterfeiting Trade Agreement (ACTA) Treaty Summary

Written By David D'Angelo on Friday, June 8, 2012 | 6/08/2012


For those who want to know about the Anti-Counterfeiting Trade Agreement (ACTA) Treaty below is the summary of its content.  We have previously discussed why ACTA should be stopped in an article entitled, "Stop ACTA or the Internet and Freedom is Destroyed."

The finalized agreement text was published on 15 April 2011 and includes 6 chapters with 45 articles:  This summary is lifted from Wikipedia.


Chapter I: Initial Provisions and General Definitions

This Chapter describes the scope of the agreement as well as relations to other agreements. It asserts that obligations from other agreements still exist with entry into force of this agreement (Article 1) and that the agreement applies only those intellectual property rights existing in the country applying the treaty (Article 3). Countries may impose stricter measures than the treaty requires (Article 2) and should share (confidential) information for law enforcement purposes (Article 4). The treaty explicitly also applies to Free Zones (Article 5).

Chapter II: Legal Framework For Enforcement of Intellectual Property Rights

The legal framework set out in Chapter II is divided in five sections.

Section 1: General Obligations with Respect to Enforcement

General obligations are requirements to implement the provisions in law, to have fair procedure as well as "proportionality between the seriousness of the infringement, the interests of third parties, and the applicable measures, remedies and penalties" (Article 6).

Section 2: Civil Enforcement

The sections provides that rights holders have access to civil or (if they exist) administrative procedures (Article 7) and to have the possibility for judges "to issue an order against a party to desist from an infringement" (Article 8). They may also require in civil procedure pirated copyright goods and counterfeit trademark goods to be destroyed (Article 10). According to Article 11, they may ask (alleged) infringers to provide information on the goods it "controls". Article 9 states that a Party's judicial authorities may consider inter alia any legitimate measure of value submitted by a rights holder, including lost profits, the value of infringed property as per market price, or the suggested retail price. This clause has received considerable criticism for its validity, as well as its similarity to previously controversial attempts at establishing precedent to the same effect. According to the Foundation for a Free Information Infrastructure, the principle does not "reflect the economic loss suffered by the right holder". In a Business Line opinion piece, a professor from the Indian Institute of Foreign Trade's Centre for WTO Studies also explained that it would lead to "excess valuation" in infringement suits.

Section 3: Border Measures

At borders, officials may act on suspect goods on their own initiative or upon request of a "rights holder". For goods in transit, the requirements do not have to enacted by a state (Article 16). "Small consignment" for commercial use are included in the border provisions, while "goods of a non-commercial nature contained in travellers’ personal luggage" are excluded from the scope (Article 14).

Section 4: Criminal Enforcement

Article 23: Criminal Offenses

At least "wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale" should be punishable under criminal law.

According to European Digital Rights, the article "provides an extremely low threshold" when considering that the scope includes "acts" and because consequences for infringement can include criminal penalties. EDRi also outlines an absence of definitions for associated constructs, such as "aiding and abetting", "commercial scale", and "economic advantage", which it describes as "simply inappropriate in a key provision, on whose meaning the proportionality and the legality, of the Agreement rests".

Article 24: Penalties

Penalties that Parties should have in their criminal system should "include imprisonment as well as monetary fines", which are sufficiently high for discouragement of actions forbidden under the treaty.

Section 5: Enforcement of Intellectual Property Rights in the Digital Environment

Article 27: Enforcement in the Digital Environment

In the digital environment, also Civil and Criminal enforcement should be available "to permit effective action against an act of infringement of intellectual property rights which takes place in the digital environment" (Article 27, paragraph 1). Furthermore, infringement over digital networks (possibly including "the unlawful use of means of widespread distribution for infringing purposes") should be enforced in a manner, which "preserves fundamental principles such as freedom of expression, fair process, and privacy" (Paragraph 2). Against circumvention of systems to prevent copying measures should be implemented (Paragraph 6).
Critics of this article, such as the European Digital Rights, have raised concerns that its emphasis on the role of corporations in enforcement "promotes the policing and even punishment of alleged infringements outside normal judicial frameworks", while failing to "ensure effective remedies against such interferences with fundamental rights" despite "vague references to 'fair process' in the text [that] are not backed up by mandatory processes requiring respect for the Rule of Law" in Article 21 of the European Union's Maastricht Treaty.

Chapter III: Enforcement Practices

Article 28: Enforcement Expertise, Information, and Domestic Coordination

Parties are expected to cultivate expertise within agencies tasked with enforcing intellectual property rights, promote internal coordination, and facilitate joint actions. They are also compelled to collect and utilize statistical data, as well as "other relevant information concerning intellectual property rights infringements", to prevent and combat infringement as necessary. The article also indicates that parties shall "endeavour to promote, where appropriate, the establishment and maintenance of formal or informal mechanisms, such as advisory groups, whereby [their] competent authorities may receive the views of right holders and other relevant stakeholders."

Article 29: Management of Risk at Border

Parties may consult stakeholders or the intellectual property authorities of another party to identify and mitigate risks. Information, including but not limited to information that assists in identifying and targeting suspicious shipments, may be shared between parties for the purposes of border enforcement. Should an importing party seize infringing goods, it may supply such information to assist an exporting party in pursuing infringers.

Chapter IV: International Cooperation

Article 33: International Cooperation, Article 34: Information Sharing, Article 35: Capacity Building and Technical Assistance

Chapter V: Institutional Arrangements

In Article 36, the ACTA committee is established as governing body of the treaty in which all parties are represented. The body is not involved in individual cases, but monitors implementation, can formally propose changes to the convention (on the suggestion of a Party) and decides on the admittance of WTO-members which were not present at the negotiations. The committee decides by consensus. Parties establish a contact point (Article 37) which acts as a primary contact with regards to the execution of the treaty and are required to "shall accord sympathetic consideration" to requests for cooperation on matters regarding the convention (Article 38).

Chapter VI: Final Provisions

Chapter VI is the treaty's last chapter. It outlines principles and procedures regarding the treaty's status and execution.

Article 39: Signature

The article specifies that the agreement remains open for signature until 2013-05-01 by its negotiators, as well as any other World Trade Organization member that the negotiators support by consensus.

Article 40: Entry Into Force

Conditions necessary for the treaty to become effective are defined, which include six parties submitting instruments of ratification, acceptance, or approval to the depositary, as well as a thirty-day interim waiting period.

Article 41: Withdrawal

The process for withdrawal is outlined, which entails a party submitting written notification to the depositary and becomes effective 180 days after receipt.[82][83] This process would also be subject to various national guidelines.[83]

Article 42: Amendments

Parties may submit proposed amendments to the Committee for review, which would then determine whether or not the proposed amendment should be presented for potential ratification, acceptance, or approval. Successful amendments would become effective 90 days after all parties have provided their respective instruments of ratification, acceptance, or approval to the depositary.

In a report to the Australian Joint Standing Committee on Treaties, Kimberlee Weatherall, an associate professor at the University of Queensland, assessed the article in saying "it might be argued that the text of ACTA could be fleshed out through guidelines on an ongoing basis, with possible amendments in the longer term."[85] Citing the relationship with Article 33, she added that "it might further be argued that the exhortations to ‘promote cooperation, where appropriate, among [the Parties’] competent authorities’, particularly in conjunction with the existence of regular meetings and exchange of information about enforcement practices, creates the basic framework within which more detailed mechanisms can be developed over time".

Article 43: Accession

After the date in Article 39 passes, any WTO member nation may seek to accede into the agreement. The terms of acceptance would be decided by the Committee on an individual, case-by-case basis. The treaty would enter into force for successful applicants thirty days after receipt of its instrument by the depositary.

Article 44: Texts of the Agreement

The treaty makes equally authoritative English, French and Spanish versions of the text, which for the purposes of signature are part of a single document.

Article 45: Depositary

Article 45 is the final text of the treaty. It elects the Government of Japan as depositary.


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