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 10: Enforcement in the Digital Environment

Michael Blakeney

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


INTRODUCTION The main area in which ACTA goes well beyond TRIPS enforcement is in the area of enforcement in the digital environment. Expressions of concern about the impacts of digital piracy on the creative industries had been a constant undercurrent to the ACTA negotiations. A March 2010 industry study reported that in 2008 the EU’s creative industries most impacted by piracy (film, TV series, recorded music and software) experienced retail revenue losses of €10 billion and losses of more than 185,000 jobs due to piracy, and that based on current projections and assuming no significant policy changes, its creative industries ‘could expect to see cumulative retail revenue losses of as much as €240 billion by 2015, resulting in 1.2 million jobs lost by 2015’.1 Section 5 of ACTA deals with the enforcement of IPRs in the digital environment, including the distribution of infringing goods and works and action against the circumvention of technological protection measures and digital rights management. This is all subject to the preservation of legitimate activity, such as electronic commerce, and to the guarantees offered by Article 4 for privacy and confidentiality. The formulation of the provisions in section 5 involved a tension between the US desire to import strong anti-circumvention provisions based on the US Digital Millennium Copyright Act (DMCA) and the IP chapters of the FTAs signed by the USA in the last 10 years and the EU legislation on the same subject.2 A number of the provisions of the Internet Treaties specifically included...

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