Friday, August 27, 2010

ACTA - Summary of Key Elements Under Discussion

Background
The proliferation of counterfeit and pirated goods in international trade poses an ever-increasing threat to the sustainable development of the world economy. Trade in these goods causes significant financial losses for the right holders and legitimate businesses. It also hinders sustainable economic development in both developed and developing countries and, in some cases, represents a risk to consumers.
Expertise, innovation, quality, and creativity are the main factors for success in knowledge-based economies. Adequate protection and enforcement of intellectual property rights is a key condition for nurturing those factors. In 2006, Japan and the United States launched the idea of a new plurilateral treaty to help in the fight against counterfeiting and piracy, the so-called Anti-Counterfeiting Trade Agreement (ACTA). The aim of the initiative was to bring together those countries, both developed and developing, that are interested in fighting counterfeiting and piracy, and to negotiate an agreement that enhances international co-operation and contains effective international standards for enforcing intellectual property rights.
Preliminary talks about such an anti-counterfeiting trade agreement took place throughout 2006 and 2007 among an initial group of interested parties (Canada, the European Union, Japan, Switzerland and the United States). Negotiations started in June 2008 with the participation of a broader group of participants (Australia, Canada, the European Union and its 27 member states, Japan, Mexico, Morocco, New Zealand, Republic of Korea, Singapore, Switzerland and the United States) and shall be concluded in 2010. Agendas are made publicly available on the websites of the parties prior to each round.
A variety of groups have shown their interest in getting more information on the substance of the negotiations and have requested that the draft text be disclosed. However, it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation. This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues. At this point in time, ACTA delegations are still discussing various proposals for the different elements that may ultimately be included in the agreement. A comprehensive set of proposals for the text of the agreement does not yet exist.
This paper is intended to clarify the objectives of the proposed agreement and to summarize the issues under discussion. It gives an overview of the elements suggested under the different headings and highlights the main issues. It is important to note that discussions are ongoing; new issues might come up and other issues may finally not be included in the agreement. This paper does not prejudge of the final structure and content of the agreement which may differ from what is being discussed at the current stage of negotiations and described below.
Objective of the ACTA
The ACTA initiative aims to establish international standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of counterfeiting and piracy. In particular, the ACTA is intended to establish, among the signatories, agreed standards for the enforcement of intellectual property rights that address today's challenges by increasing international cooperation, strengthening the framework of practices that contribute to effective enforcement of intellectual property rights, and strengthening relevant enforcement measures. The intended focus is on counterfeiting and piracy activities that significantly affect commercial interests, rather than on the activities of ordinary citizens. ACTA is not intended to interfere with a signatory's ability to respect its citizens' fundamental rights and civil liberties, and will be consistent with the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and will respect the Declaration on TRIPS and Public Health.
ACTA Structure and Content
ACTA aims to build on existing international rules in the area of intellectual property, in particular on the TRIPS Agreement, and is intended to address a number of enforcement issues where participants have identified that an international legal framework does not exist or needs to be strengthened. The draft structure of the agreement as discussed at this stage is the following:

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