Intellectual Property Enforcement
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Intellectual Property Enforcement

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

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.
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Chapter 5: Legal Framework

Michael Blakeney


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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