Intellectual Property Enforcement

Intellectual Property Enforcement

A Commentary on the Anti-Counterfeiting Trade Agreement (ACTA)

Elgar Commentaries series

Michael Blakeney

This important book is the first detailed analytical treatment of the Anti-Counterfeiting Trade Agreement (ACTA) and its impact on intellectual property enforcement. The ACTA had been formulated to deal with the burgeoning growth in the trade in counterfeit and pirate products which was estimated to have increased ten-fold since the promulgation of the TRIPS Agreement in 1994. The book clarifies how the ACTA supplements the enforcement provisions of the TRIPS Agreement, namely by: expanding the reach of border protection to infringing goods in transit; providing greater detail of the implementation of civil enforcement and; providing for the confiscation of the proceeds of intellectual property crimes. As the book illustrates, a significant additional innovation is the introduction of provisions dealing with enforcement of intellectual property rights in the digital environment.

Chapter 1: Impacts of Counterfeiting and Piracy

Michael Blakeney

Subjects: law - academic, intellectual property law, law -professional, intellectual property law


INTRODUCTION Counterfeiting and piracy have become world trade issues because of increasing estimates of their size and because of the concerns about the multifarious adverse impacts of this trade. At the time of the Uruguay Round, the US$60 billion estimate of the size of the trade in counterfeit and pirate products justified the claim that intellectual property (IP) infringements had become ‘trade related’, justifying the shift of the international IP regime from the World Intellectual Property Organization (WIPO) to the General Agreement on Tariffs and Trade (GATT). As is discussed in Chapter 2, perceptions of the continuing and exponential growth in this trade and of its multifarious harmful impacts stand at the basis of the proposals for the Anti-counterfeiting Trade Agreement (ACTA). It should be acknowledged that objections have been made by a number of commentators to the use of the emotive and criminal law-laden terms ‘counterfeiting’ and ‘piracy’ in the discourse about intellectual property rights (IPR) infringements.1 For example, in the context of access to medicines, Correa criticizes the obfuscation caused by the ‘inappropriate use of the concept of “counterfeiting” or “piracy” to describe situations in which legitimate generic versions of medicines are introduced without the consent of the originator of the drug’.2 The justification for the use of these terms is the apparent exponential growth in this trade, even though its clandestine nature makes its detection difficult. Metrics The inflating size of the trade attributed to counterfeit and pirate products has had an inevitable impact on the...

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