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)
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