Although the term “anti-counterfeiting” suggests an agreement limited to preventing trade in counterfeit products, ACTA’s draft provisions, to date, would set new minimum enforcement standards for a range of intellectual property rights. In several areas, these standards could impede legitimate competition, shortchange legal process and shift costs of enforcing private commercial rights to the public.
The parties to ACTA have agreed to narrow some of its provisions in recent months. Despite these improvements to its text, ACTA continues to present risks for global access to medicines, including potentially restricting free transit of generics, imposing chilling effects on the medicines trade, and limiting flexibilities in intellectual property (IP) rules.
The parties have cited protecting consumers from unsafe products as a primary benefit of ACTA. But among IP infringements, only willful trademark counterfeiting of potentially dangerous classes of products poses a categorical public safety risk. Outside the context of counterfeiting, IP infringement analysis is not related to health. Moreover, ACTA diverts attention and resources away from more direct and comprehensive public safety measures.
ACTA’s most significant public health costs may come from its narrative positioning and precedent. ACTA does not adequately distinguish between criminal activity and civil infringements occurring in the context of market competition—a problem that concerns consumer groups and intellectual property owners alike.
Several parties to ACTA now rightly suggest narrowing the agreement’s scope altogether. Public health analysis leads to the conclusion that ACTA should be scaled back to cover only willful commercial scale trademark counterfeiting.
Maybarduk, Peter. 2010. ACTA and Public Health. PIJIP Research Paper No. 9. American University Washington College of Law, Washington, DC.