By Amara Osisioma and Matt Gelfand – Edited by Andrew Segna
On October 1, the United States — as well as Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea — signed the Anti-Counterfeiting Trade Agreement (“ACTA”). Ars Technica provides commentary.
The press release by the signatories indicated that the Agreement was necessary because “the proliferation of counterfeit and pirated goods poses considerable challenges for legitimate trade and the sustainable development of the world economy. Trade in these goods causes significant financial losses for right holders and legitimate businesses.”
The ACTA provides for: “(1) enhanced international cooperation; (2) promotion of sound enforcement practices; and (3) a legal framework for [intellectual property rights] enforcement in the areas of criminal enforcement, enforcement at the border, civil and administrative actions, and distribution of . . . infringing material on the Internet.”The accord has a number of specific effects on the intellectual property laws of the signatories. For example, signatories must make it unlawful for entities to promote devices that circumvent “technological measures” that protect copyright. In the United States, the Digital Millennium Copyright Act already provides this sort of protection.
Signatories must also establish seizure and forfeiture laws for counterfeited trademarked goods and pirated copyrighted material.
The United States has praised the Agreement as “an act of shared leadership and determination in the international fight against intellectual property.” The European Union, Mexico, and Switzerland did not sign the agreement but declared their support and plans to sign in the future.
The European Union leaked the text of the agreement even as the Obama administration was trying to keep the text of the accord secret, indicating that there may be some disunity among the parties to the Agreement. The agreement can still be ratified up until March 2013.
For those who have already signed the Agreement, the next step will be the submission of formal ratification documents. Once six signatories have formally ratified the agreement, it will go into effect. Many scholars have argued that US law may require Senate approval of the Agreement, potentially jeopardizing the United States’ acceptance.
The success of the agreement remains to be seen. China and Russia, two countries that are contributors to the counterfeit and piracy problems, are not parties to this agreement; in fact Russia is not even a member of the WTO. So while this agreement makes enforcement easier in many countries, it does not include two large markets for pirated goods and goods that infringe copyrights.
Amara is a 2L at Harvard Law School. Matt Gelfand is a 3L at Harvard Law School.