Anti-Counterfeiting Trade Agreement (ACTA)

Abstract

In this era of cyberspace there are many obstacles in the virtual world that hinder safe & smooth functioning of transactions. Counterfeiting, copyright infringement and piracy of the content are few of the most common hurdles. To tackle these problems, a treaty ‘Anti-Counterfeiting Trade Agreement’ was proposed and negotiated upon by numerous countries. Though the treaty is yet to be enacted, this study is undertaken with the intention to bring in light the basic aims of the Agreement, provisions mentioned to achieve the aims, and obligations put on member States for the implementation of the treaty.

Introduction

The Anti-Counterfeiting Trade Agreement (ACTA) was a multilateral treaty designed to act as complementary to the TRIPS Agreement. It intended towards providing for an international legal framework as an effective and appropriate means for the enforcement of intellectual property rights.

The ACTA mainly focuses on counterfeit goods, generic medicines, and copyright infringement in the virtual world. The ACTA was negotiated for a long time. It was signed by 8 countries in the year 2011. Later in 2012, Mexico and 22 member states of the European Union also signed the agreement. India did not participate in the negotiations on ACTA.

The agreement is ratified by only one country i.e. by Japan. It would come into force in the countries that ratified it after it is ratified by a total of six countries.[1]

The Agreement[2] consists of 6 chapters.

  • Relation of ACTA to TRIPS

As stated above, the Agreement was made to complement the TRIPS Agreement. Thus, it is stated in the Agreement states that it does not interfere with any functions that are to be performed by its member States’ in relation to TRIPS.[3]

  • Scope of Obligations

The ACTA sets minimum enforcement standards that are to be implemented by the States for the purpose of attaining the goals of the Agreement. The member states are given a choice to carry out enforcement on an extensive level than those provided in the agreement, provided that such enforcement does not contravene with the provisions of the Agreement.[4] Member States are free to determine their methods for implementation of the provisions of the Agreement in their legal system. [5]

  • Disclosure of Information

Member States are not obligated by the Agreement to disclose their confidential information that would be contrary to their laws including those protecting privacy rights, or any information that would distort public interest.[6]

  • General Obligations of the Member States

Article 6 entails general obligations with respect to the enforcement of the Agreement. It states that every member State shall ensure there are enforcement procedures available under its law; and such procedures shall not create barriers to legitimate trade and provide a safeguard against their abuse. The procedures implemented shall be equitable, time-saving, and cost-effective.

  • Civil Enforcement

To ensure justice and fairness, each member State shall make available to the intellectual property holders the right to pursue civil proceedings for the enforcement of their rights.[7]

Article 8 provides that the Member States may limit the remedies available against use by governments without the authorization of the right holders.

Article 9 permits the States’ judicial institutions to order the infringer to pay the right holder damages to compensate for the injury suffered by the right holder due to the infringement.

Article 10 provides that with respect to pirated copyright goods and counterfeit trademark goods each member shall provide that its judicial institutions have the authority to order, at the request of the right holder, such infringing goods to be destroyed without any sort of compensation, and also have the authority to order precautionary measures to prevent further infringements. Member States may provide for the remedies prescribed under Article 10 to be carried out at the expense of the infringer.

  • Border Measures

The Member States are to adopt or maintain procedures for imports and exports[8], whereby, the customs authorities, on their own initiative, may suspend the release of suspected goods, and where appropriate, the right holder may request the competent authorities to suspend the release of the suspected goods. The same provisions are applicable to goods that are in transit.  

  • Determination of Infringement

The Member States are to provide for procedures to determine within a reasonable period of time, whether the suspected goods infringe intellectual property rights or not. [9]

  • Criminal Enforcement

In cases of willful trademark counterfeiting or piracy on a commercial scale, every Member State has to provide for criminal procedure and penalties.[10] The unauthorized copying of cinematographic content will also be criminally punishable.[11] And all the violations that are considered as criminal offences shall attract penalty in the form of imprisonment along with monetary fines which are sufficiently high so as to deter future infringements.

  • Enforcement in Digital Environment

Article 27 of the Agreement states that it is to be looked upon by the States that the enforcement procedures adopted or maintained are available under their respective laws to permit action against acts that infringe intellectual property rights in the digital environment.

  • Transparency

According to Article 30[12], every Member State, for the promotion of transparency in the administration of the intellectual property rights enforcement system, shall make proper arrangements for the publishing or by any other means to make available to the public information on procedures that are available under its law for the enforcement of intellectual property rights, competent authorities, contact details for assistance, laws, regulations, judicial decisions, etc.

  • Entry into Force

Article 40 of the Agreement states that it shall come into force thirty days after the receipt of the sixth instrument of ratification as between the signatories that have ratified to it.

Criticism

The ACTA has been widely criticized for targeting internet and its users. It was contended that the ACTA contains several features that raise significant potential concerns for consumers’ privacy and civil liberties, as well as pose threats to digital innovation and the free flow of information on the internet.

The ACTA was secretly negotiated and thus bypassed checks and balances of domestic as well as international norms. It also requires its signatories to enact new measures for the intellectual property rights enforcement that would create restrictive rules concerning users’ freedom of speech, privacy and innovation. Moreover, the constitution of a new body, the ACTA Committee, which constitutes of non-elected members, having no legal obligation to be transparent in the proceedings was raised as a major concern.  

Conclusion

The Anti-Counterfeiting Trade Agreement is yet to be enacted. In today’s times, when almost every possible activity or transaction is taking place virtually, the Anti-Counterfeiting Trade Agreement is a significant step for promoting global cooperation to tackle the issue of counterfeiting and piracy. Though it is subjected to many loopholes, there is a possibility of it turning out to be a success if appropriately modified according to the changing times. 


[1]Article 40, ACTA, 2011.

[2] Anti-Counterfeiting Trade Agreement, 2011.

[3]Article 1, ACTA,2011.

[4]Article 2, ACTA, 2011.

[5] Id.

[6]Article 4, ACTA, 2011.

[7]Article 7, ACTA, 2011.

[8]Article 16, ACTA, 2011.

[9]Article 19, ACTA, 2011.

[10]Article 23, ACTA, 2011.

[11]Article 23(3), ACTA, 2011.

[12] ACTA, 2011.

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