Document Type

Article

Publication Date

1-2011

Abstract

The Anti-Counterfeiting Trade Agreement (ACTA), a plurilateral intellectual property agreement developed outside of the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), represents an attempt to introduce maximalist intellectual property standards in the international sphere, outside of existing institutional checks and balances. ACTA is primarily a copyright treaty, masquerading as a treaty that addresses dangerous medicines and defective imports. The latest ACTA draft, which is the final text available to the public before the signed text is released, contains significant shifts away from earlier draft language towards more moderate language, although it poses the same institutional problems and many of the same substantive problems as the agreement’s earlier incarnations. ACTA will be the new international standard for intellectual property enforcement, and will likely cause legislative changes in countries around the world. This paper compares the December 3, 2010 Text of the Anti-Counterfeiting Trade Agreement (ACTA) to existing international intellectual property law and to a prior draft of ACTA. This paper (1) outlines the scope of ACTA as it is likely to be signed, and (2) preserves the evolution of ACTA’s language for predictive purposes, to better understand the probable parameters of future plurilateral agreements, such as the Trans-Pacific Partnership (TPP) between the United States and other countries, including Australia, Brunei, Chile, Malaysia, New Zealand, and Peru. ACTA’s most significant points of departure from existing international intellectual property law include: (1) expansive coverage of multiple kinds of IP and changes to the international definitions used in the WTO Agreement on Trade Related Aspects of Intellectual Property Law (TRIPS Agreement); (2) the expansion of what constitutes criminal copyright violations; (3) more stringent border measures; (4) mandating closer cooperation between governments and right holders, threatening privacy and co-opting government resources for private-sector benefit; and (5) the creation of a new international institution (an ACTA “Committee”) to address IP enforcement. These changes indicate a push for standardization around a rights regime that may not be appropriate for all countries, endangering existing institutional processes and legitimacy. This paper begins by briefly covering the history of ACTA. It then outlines the scope of the most recent draft, comparing it to existing international intellectual property law. It looks at the scope of definitions and coverage of different rights; civil enforcement, including the language on digital enforcement; criminal enforcement; border measures; international cooperation; and institutional arrangements. The final section then turns to how the language of ACTA has developed. Comparing the current language in ACTA to the language of its previous officially released incarnation in April, 2010 shows the interests that are likely to be raised again in future plurilateral agreements such as the Trans-Pacific Partnership (TPP). Comparisons with the April draft also lend clarity and perspective to the final draft’s vaguer language.