Economic Highlights

New Delhi, 24 April 2009

Anti-Counterfeiting Trade Pact

WAR AGAINST PIRATED WORKS

By Dr P K Vasudeva

The US is considering coming out with an Anti-Counterfeiting Trade Agreement (ACTA), designed to combat the ‘increase in global trade of counterfeit goods and pirated copyright protected works’. This includes whether to involve Internet Service Providers (ISPs) in fighting copyright infringement or not. Details of the negotiations, previously held under a cloak of secrecy, have at last been published thanks to US President, Barack Obama’s commitment of transparency in government.

A study the agreement is a worthwhile exercise, which should help countries affected.  Section 4 of the pact is intended to address some of the special challenges that new technologies pose for enforcement of intellectual property rights. These include the possible role and responsibility of ISPs in deterring copyright and related rights piracy over the Internet. As yet no draft proposal has been tabled because discussions are still focused on gathering information on the different national legal regimes to develop a common understanding

The proliferation of counterfeit and pirated goods in international trade is posing an ever-increasing threat to sustainable development in world economy. It not only causes significant financial loss to the right holders and legitimate businesses but hinders sustainable economic development in both developed and developing countries. In some cases it even represents a risk to consumers.

Expertise, innovation, quality, and creativity are the main factors for success in any knowledge-based economy. Adequate protection and enforcement of intellectual property rights is a key condition for nurturing these. In 2006, Japan and the US launched the idea of a new plurilateral treaty to help in the fight against counterfeiting and piracy, the so-called ACTA.

The aim of this initiative is to bring together nations 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 for this took place between 2006 and 2007 among an initial group --Canada, European Commission, Japan, Switzerland and the US.  Beginning June 2008, a broader group--Australia, European Union, Mexico, Morocco, New Zealand, Republic of Korea and Singapore joined the negotiations.

A number of groups have shown interest in additional information and thus requested that the draft text be disclosed. However, during trade negotiations it is an accepted practice among sovereign States not to share texts with the public at large, particularly when it is at an early stage. The practice allows delegations to exchange views in confidence to facilitate an agreement, particularly if it involves a complex issue. At present, the ACTA delegations are at the discussion level and no comprehensive set of proposals for the text of the agreement is available.

As of now commercial interests, rather than activities of ordinary citizens is the intended focus of the initiative. The ACTA is not meant to interfere with a signatory’s ability to respect its citizens’ fundamental rights and civil liberties. It 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. Of particular importance to ACTA will be the availability of life saving drugs to developing countries at a cheaper rate.

The draft structure of the agreement as discussed at this stage is broadly dealing with a number of issues such as: Civil enforcement referring to providing courts or other competent authorities with the authority to order/take specific actions when it is established that a party has violated intellectual property laws, and the rules on when and how to use those powers. This would involve questions such as which intellectual property rights would be covered? What will be the definition of adequate damages and the question of how to determine the amount of damages, particularly when a right holder encounters difficulties in calculating the exact amount of damage it has incurred?

What will be the judicial authorities’ authority to order injunctions to ensure a party desists from an infringement? What remedies, including destruction of goods can be adopted if found to be infringing an intellectual property right? And, what would amount to be a reasonable reimbursement of legal fees and costs?

Cross-border trade in counterfeit and pirated goods is a growing global problem that often involves organized criminal networks. ACTA participants need to work together to tackle this challenge. In particular, they need to have basic issues in place such as that international enforcement cooperation is vital to realize fully effective protection of intellectual property rights; that there is cooperation among the competent authorities of the Parties concerned with enforcement of intellectual property rights, consistent with existing international agreements; there is sharing of relevant information such as statistical data and information on best practices among the Signatories, in accordance with international rules and related domestic laws to protect privacy and confidential information and there is capacity building and technical assistance in improving enforcement.

The ACTA is also working out laws that should be in place to promote better enforcement of intellectual property rights. It would need to focus on the methods used by authorities to apply those laws, wherein there is fostering of expertise among competent authorities in order to ensure effective enforcement of intellectual property rights; collection and analysis of statistical data and other relevant information such as best practices in this regard; internal coordination among competent authorities concerned with enforcement of the rights, including formal or informal public/private advisory groups; steps to allow customs’ authorities to better identify and target shipments, which are suspected to contain counterfeit or pirated goods and publication of information on procedures regarding the enforcement of intellectual property rights, and promotion of public awareness.

The obligations or recommendations for enforcement practices and sharing of information with the public should take into account and be consistent with existing international agreements and the need to protect investigative techniques, confidential law enforcement information and privacy rights.

The ACTA draft is also considering including all necessary provisions for the institutional set up, including questions related to the implementation of the agreement, how and when to hold meetings of the Parties, and other administrative details of the agreement. In the end, the final provisions of the agreement are expected to take into account details on how the agreement will function, such as how to become a party to the agreement, how to withdraw from it and amend the agreement in the future.

While the finalisation of the draft will take some time, India should seriously consider enacting a legislation similar to the ACTA to safeguard its Internet Service Providers for the protection of copyright infringements. This will help strengthen the movement to fight the increasing global trade of counterfeit goods and pirated copyright protected works. After all, India has a huge consumer market. –INFA

(Copyright, India News and Feature Alliance)