February 8, 2011

Whitehouse annual IP report: ACTA as “first-of-its-kind agreement”

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A Whitehouse Intellectual Property annual report Feb 2011 unsurprisingly mentions ACTA

In the Strategy, we committed to promote enforcement of U.S. intellectual property rights through trade policy. On November 15, USTR concluded negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) and the text of the agreement was finalized on December 3. ACTA is a first-of-its-kind agreement and, once it enters into force, ACTA will aid rightholders and the U.S. Government to combat infringement.

While the European Commission trade negotiators consider ACTA as forum shopping of TRIPS+ the letter from United States coordinator Victoria A. Espinel speaks of ACTA as a first-of-its-kind agreement. Indeed the use of trade agreements for trading IPR enforcement laws on other nations is new.

Due to the global scope of online infringement, it is critical that we have the close cooperation of our trading partners. We will continue to push our foreign law enforcement counterparts to do more—through actions such as bilateral cross-border enforcement actions, coordinated global sweeps with the WCO and the International Criminal Police Organization (INTERPOL) and increased cooperation through trade tools such as ACTA.

The U.S. Government has continued its work to promote best practices for intellectual property enforcement. A key accomplishment in this area was the conclusion of ACTA negotiations in November 2010. ACTA will be the first agreement of its kind, by requiring both strong laws on the books and by promoting key practices that make those laws effective in practice. For example, ACTA will call on parties to encourage the development of specialized expertise within, and coordination among, their enforcement authorities, as in the U.S. USTR will also use the 2011 Special 301 report, which is due out at the end of April, to highlight best practices by trading partners.

the successful conclusion of the ACTA negotiations and the publication of the final text of the agreement:
− ACTA was developed by countries representing more than 50% of world trade and is a significant step forward in international cooperation. It will strengthen enforcement of intellectual property rights by providing a global framework for effectively combating global proliferation of commercial-scale counterfeiting and piracy.
− ACTA will be the first agreement of its kind to not only require strong laws on the books, but to also promote key practices that make those laws effective in practice. For example, ACTA will call on parties to encourage cooperative efforts within the business community to combat infringement.

− ACTA requires, among other things, that signatories establish effective intellectual property enforcement legal frameworks, including obligations to:

  • establish criminal procedures and penalties for willful trademark counterfeiting or copyright piracy, or importation or use, on a commercial scale, and aiding and abetting criminal conduct, and authorizes criminalizing camcording;
  • establish laws that impose imprisonment and destruction as penalties for criminal violations of enforcement laws;
  • establish civil enforcement laws that enhance the tools available to rightholders to crack down on counterfeiting and piracy, including by providing for meaningful damages for rightholders, the destruction of counterfeit goods and also including appropriate safeguards against abuse and to protect privacy as appropriate;
  • ensure that civil and criminal enforcement laws are equally applicable to copyright infringement occurring online; and
  • establish anti-circumvention laws to protect the use of technological protection measures (digital locks).

USTR

This year, USTR and partner countries, representing more than half of global trade, finalized the text of ACTA. The agreement is an important new tool to fight the global scourge of counterfeiting and piracy, which threatens jobs that depend on innovation—including those here in the U.S. Consistent with the Administration’s strategy for intellectual property enforcement, the ACTA negotiations have stepped up the fight against global proliferation of commercial-scale counterfeiting and piracy in the 21st century. The agreement includes innovative provisions to deepen international cooperation, promote strong enforcement practices and ultimately help sustain American jobs in innovative and creative industries. In December 2010, USTR published a notice seeking public comments in connection with consideration of U.S. signature of the agreement. Some of ACTA’s key features include commitments to:

  • support and enhance approaches to criminal enforcement through stronger requirements for criminal remedies, highlighting the importance of combating unlawful camcording in theaters and enhancing seizure and destruction of fake goods, seizure of the equipment and materials used in their manufacture and criminal proceeds;
  • combat Internet piracy through a balanced framework that addresses widespread distribution of pirated copyrighted works and preserves fundamental principles such as freedom of expression, fair process and privacy;
  • provide customs authorities with ability to act against import and export shipments as well as to cooperate on in-transit shipments;
  • strengthen civil enforcement provisions dealing with damages, provisional measures, recovery of costs and attorneys’ fees and destruction of infringing goods;
  • create cooperation and information-sharing mechanisms among ACTA parties to assist in enforcement efforts; and
  • promote strong enforcement practices that lead to meaningful implementation of laws on the books.

Quick Observations

1. First-of-its-kind

“ACTA is a first-of-its-kind agreement and, once it enters into force, ACTA will aid rightholders and the U.S. Government to combat infringement.”

The United States admit it is a “First-of-its kind agreement”. The European Commission should then answer why it does not provide impact assessments of the innovative process and substance.

2. Safeguards and privacy protection

“establish civil enforcement laws that enhance the tools available to rightholders to crack down on counterfeiting and piracy, including by providing for meaningful damages for rightholders, the destruction of counterfeit goods and also including appropriate safeguards against abuse and to protect privacy as appropriate;”

We like to learn more about the alleged safeguards and privacy protection in ACTA