Intellectual Property at the Crossroads of Trade

Intellectual Property at the Crossroads of Trade

ATRIP Intellectual Property series

Edited by Jan Rosén

The book comprises thoughtful contributions on varying commercial aspects of IP, from parallel imports of pharmaceuticals to exhaustion of rights, and from trade in goods of cultural heritage to regulation of goods in transit. There is detailed discussion of licensing, including cross-border elements, online licensing, and the potential for harmonisation in Europe. This precedes a multi-layered analysis of the Anti-counterfeiting Trade Agreement.

Chapter 9: Two tales of a treaty revisited: the proposed Anti-Counterfeiting Trade Agreement (ACTA)

Charles R. McManis and John S. Pelletier

Subjects: law - academic, intellectual property law


Over the past four years, through a coordinated series of public announcements that seemed to have been stimulated in part by previously leaked documents, details gradually came to light concerning negotiations over a proposed new Anti-Counterfeiting Trade Agreement (ACTA). According to the governments involved in these closed-door ‘plurilateral’ trade negotiations, the purpose of ACTA was simply to help fight the proliferation of counterfeit and pirated goods in international trade. From the outset, however, the negotiations were embroiled in controversy, for at least four reasons. First, while the negotiations initially were carried out behind closed doors, industry representatives were apparently being supplied with information that was not being disseminated to the public.4 Second, the ‘plurilateral’ nature of the negotiations aroused suspicions that the ACTA negotiations were but the latest example of ‘forum-shifting’ – a well-documented tactic that is apparently being deployed by owners of intellectual property (IP) in an effort to ratchet up international standards for the protection of private intellectual property rights (IPRs). These procedural concerns about the conduct of the negotiations, in turn, contributed to two further suspicions about the substantive purpose and scope of ACTA. The first suspicion was that ACTA was simply an effort on the part of intellectual property owners to socialize the enforcement costs of their private IPRs by enhanced civil, criminal, and border enforcement proceedings and remedies. The second suspicion – generated in part by a leaked negotiating document – was that the focus of these civil, criminal and border enforcement provisions would not be limited to targeting commercial trade in counterfeit and pirated physical goods, but would also extend to ‘significant willful infringements without motivation for financial gain to such an extent as to prejudicially affect the copyright owner (for example, Internet piracy)’.7 To the suspicious eye, this verbatim quote from the leaked document clearly seemed to be referring to digital file-sharing – a controversial consumer phenomenon, to be sure, but quite distinct from the issue of commercial trade in counterfeit and pirated physical goods

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