Wikileaks has posted additional original ACTA documents, including draft language for several sections of the treaty. The leaked documents are consistent with earlier reports on the Enforcement of Intellectual Property Rights Chapter. The leak package also includes the Canadian non-paper on institutional arrangements for ACTA (Canada has since supplied draft treaty language that has not been leaked).
The one document this is completely new is the release of the non-paper on International Enforcement Cooperation and Enforcement Practices, which would form Chapters 3 and 4 of ACTA. The basis for discussion for the International Enforcement Cooperation (Chapter 3) are:
- Affirm the importance of international cooperation in the context of IPR enforcement, including the investigation and prosecution of international IPR crimes regardless of the location of the right holder or the origin of the infringing goods.
- Improve coordination of anti-counterfeiting and anti-piracy strategies, including fostering closer cooperation among their respective enforcement officials, through practices such as: shared risk analysis, exchange of best practices, and exchange of relevant information for use in enforcement actions, where appropriate.
- Providing for an effective exchange of information and evidence related to IPR crimes between their law enforcement agencies. This enforcement cooperation should be done in a manner that is appropriate with the factual circumstances and consistent with existing international agreements.
- Providing capacity building and technical assistance in improving IPR enforcement, both for developing country parties to the ACTA and for third countries. These initiatives could be undertaken through, or in conjunction with, the private sector or relevant international organizations.
- Working closely with developing country partners to strengthen their domestic legislation, and assisting them improving their national anti-counterfeiting, anti-piracy, and enforcement capacities through sharing IPR enforcement best practices and relevant technical assistance.
The basis for discussion for the Enforcement Practices (Chapter 4) are:
- Promoting internal coordination and joint action, where appropriate, among its government agencies concerned with IPR enforcement through coordination bodies or other relevant mechanisms.
- Maintaining formal or informal mechanisms for consulting with rights holders and other relevant stakeholders to promote more effective IPR action.
IPR Enforcement Expertise
Developing expertise within domestic law enforcement structures to ensure effective handling of IPR matters. One way of doing this would be maintaining specialized authorities for the investigation and prosecution of IPR infringement cases.
Undertaking measures designed to raise awareness among government officials and the public regarding the importance of protecting IPR (ie. the problems associated with IPR infringement, such as health risks, economic damage, and other detrimental effects).
Risk Management Techniques
Adoping and sharing practices that assist in better identifying and targeting for inspection shipments that contain counterfeit trademark goods or pirated copyright goods. Such activities could include:
b. exchanging available data with other Parties regarding significant customs seizures of counterfeit and pirated goods wherever possible, including international networks;
c. sharing information with other Parties on approaches that are developed to provide greater effectiveness in targeting shipments that could contain counterfeit and pirated goods;
d. providing that its competent authorities may conduct post-entry examinations of business records, methods of payment, purchasing contracts, and importers' internal controls to track illicit financial gains and expose business practices related to trademark counterfeiting and copyright piracy.
Publication of Enforcement Procedures and Practices
- Identify publicly competent authorities for IPR enforcement and contact points for assistance to right holders.
- Providing that relevant laws, regulations, procedures, final judicial decisions and general administrative rulings pertaining to IPR enforcement are in writing. The judicial decisions and administrative should state the relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based and should be published or made available to the public (e.g., through the Internet).
- Publicizing information on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative, and criminal systems, including any statistical information that the Party may collect for such purposes.
IPR Enforcement Information Sharing
An ACTA Party's sharing of information related to the IPR enforcement with the public is without prejudice to the need to protect investigative techniques, confidential law enforcement information, and privacy rights.