Edited by Gideon Boas, William A. Schabas and Michael P. Scharf
Maciej Barczewski and Sebastian Sykuna
The aim of ACTA was to raise the standards of intellectual property enforcement found in international instruments and, in particular, the TRIPS Agreement. Its aim was enhanced international cooperation and more effective international enforcement. In this light it presents a number of TRIPS-Plus elements. Yet, it chose to create its own governing body outside the World Trade Organization (WTO) and other existing international institutions or fora, such as the World Intellectual Property Organization (WIPO) or the United Nations (UN). The reason for this was that the existing international institutions were thought not to provide procedures that were sufficiently flexible to accommodate the attainment of a fast and effective result. The criticism was that this was achieved to a considerable extent at the expense of transparency.
Recital 44 asserts that the question of exhaustion does not arise in the context of online delivery of (digital) works, which is generally understood to mean that the owner of copyright maintains full control over the digital dissemination of digital works. Above and beyond impacting upon the question of whether exhaustion may occur online, a broader issue is at stake here. Historically, the exhaustion rule developed out of the notion of an implied licence. The latter was an attempt to explain the loss of control rights of IP owners following the first act of exploitation.