A Commentary on the Anti-Counterfeiting Trade Agreement (ACTA)
Chapter 9: Confiscation
INTRODUCTION Article 25.1 of ACTA provides for the confiscation of the assets derived from, or obtained directly or indirectly through, ‘willful trademark counterfeiting or copyright or related rights piracy on a commercial scale’ (Article 23.1), ‘willful importation and domestic use, in the course of trade and on a commercial scale, of labels or packaging’ (Article 23.2), ‘unauthorized copying of cinematographic works from a performance in a motion picture exhibition facility generally open to the public’ (Article 23.3) and with respect to the ‘aiding and abetting’ of these offences (Article 23.4). This chapter examines the role that the confiscation of the proceeds of crime can play in disincentivizing intellectual property crime. The first part of the chapter explores the objectives of proceeds of crime (PoC) legislation and how the ACTA is the latest in a series of international calls to use PoC legislation as an enforcement measure. The second part of the chapter provides an overview of the evolution of PoC laws, initially tracing the history of their development with observations regarding their effectiveness in various domestic fora. The third part of the chapter examines examples of how PoC legislation has been particularly applied to intellectual property offences in the US, UK and Australia before concluding with observations about the appropriateness of confiscation of the proceeds of crime in relation to IPR infringements and the specific provisions of the ACTA. OBJECTIVES OF POC LEGISLATION The principal objectives of PoC legislation are to punish and deter persons from breaching laws; to deprive...
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