The Anti-counterfeiting Trade Agreement (ACTA): An Assessment

The Anti-Counterfeiting Trade Agreement (‘ACTA’) is motivated by the perceived lack of progress of multilateral enforcement of intellectual property rights. Building on the equivalent provisions in EU and US bilateral and regional free trade agreements (FTAs), the ACTA parties sought to establish best practice international standards to which other countries could aspire or adhere. Proponents stressed the need to combat the increase in global piracy and counterfeiting, drawing on estimates of the scale of the problem, such as those from the OECD that suggested international trade in counterfeit and pirated products amounted to some $200 billion in 2005 (excluding domestically produced goods and digital products distributed through the internet). Formal negotiations were launched in October 2007 and concluded after 11 rounds in October 2010 in Tokyo, Japan. Negotiating parties included: Australia, Canada, Japan, the Republic of Korea, Morocco, New Zealand, Singapore, Switzerland, Mexico, the United States, and the European Union. The major emerging economies, China, Brazil and India appear not to have been formally invited to participate. ACTA was controversial both in terms of the process and the substance of the negotiations. The decision to maintain secrecy until the release of draft text in mid-2010 was to prove a significant handicap to public understanding and support for the treaty. The secrecy allowed significant misapprehensions to develop, while making it difficult for negotiators to communicate the actual scale and content of what was being achieved. There were also concerns related to; when documents would be made public; whether public interest groups had the same access as business and rightholder groups; what effect and relationship ACTA would have with the TRIPS Agreement, when and how much time the European parliament would have to exercise its duties and prerogatives to properly evaluate the treaty. Substantive areas of concern covered a range of issues including: the potential negative effect of ACTA on fundamental human freedoms and privacy; the possibility of requiring cut off of internet access to consumers that infringe the agreement; imposing liability on internet service providers that carry content that infringes the agreement; the potential negative effect of ACTA on access to medicines in Europe and in third countries. Efforts to maintain secrecy did not prevent a heated debate on ACTA generated by leaked texts of proposals, evaluations and draft treaties and fuelled the suspicion that ACTA would entail a significant shift in the laws of ACTA countries and go significantly beyond the TRIPS Agreement. This study finds that, in the case of the EU, ACTA does not entail such a significant shift in the EU Acquis, but that, while it is not fundamentally in conflict with the TRIPS Agreement, it is significantly more stringent and rightholder friendly than the TRIPS Agreement. Many of the substantive issues that raised concerns in the early position papers have been addressed or are entirely absent from the final agreed text. On the other hand ACTA also does not appear, on its own, to have a significant impact on the EU’s innovative capacity or its global competitiveness. This is partly due to the relatively modest scale of the outcome, as well as the fact that ACTA will not require any change in the laws or regulations of significant competitor countries such as Brazil, India and China. This study addresses two key questions regarding ACTA. Is it in conformity with the EU Acquis; and is it in conformity with the existing international obligations of the EU and its member states