A Commentary on the Anti-Counterfeiting Trade Agreement (ACTA)
Elgar Commentaries series
Chapter 5: Legal Framework
ACTA Chapter II Legal Framework for Enforcement of Intellectual Property Rights SECTION 1: GENERAL OBLIGATIONS Article 6: General Obligations with Respect to Enforcement 1. Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse This provision replicates the language of Article 41.1 of the TRIPS Agreement with the change that instead of referring to enforcement procedures under ‘this Part’ [Part III of TRIPS], it refers to enforcement procedures ‘available under their law’. The application of Article 41.1 of TRIPS was considered in China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights1 in which the US claimed that the enforcement provisions of China’s Copyright Law were unavailable with respect to works denied copyright protection under Article 4 of that law, which excluded copyright protection for censored works. China submitted that Article 41.1 of TRIPS only required enforcement procedures to be provided for rights covered by the TRIPS Agreement and thus if a right was not covered by the agreement, there was no obligation to enforce it.2 The Panel rejected the Chinese submissions on the basis that the Chinese Copyright Law was inconsistent with its obligations with respect...
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