Today’s post identifies many of the remaining areas of disagreement. While there are many more sections with text that has not reached consensus, these are the issues where different wording leads to very different substantive obligations. As previously discussed, most of the issues come down to the U.S. on one side and the E.U. on the other. Many involve scope concerns, with the U.S. trying to limit the treaty to copyright and trademark, while the E.U. adamant that it should extend to all intellectual property.
Note that is not a summary of the all problems with ACTA – there may be areas where there is general agreement that is cause for concern. It is also focused on the IP chapter and leaves aside chapters on enforcement practices which includes public “education” campaigns, specialized law enforcement units, and other measures for which there is no agreement.
| Article & subject | Position #1 | Position #2 |
| Article 1.2: Nature and Scope of Obligations | Aus/EU/CH/NZ/Can: ACTA should be limited in scope of enforcement of IPRs |
Others: Status quo of text, ACTA should cover both protection and enforcement of IPRs |
| Article 1.3: Relation to Standards concerning availability of IPRs | Aus/Can/Sing/NZ: ACTA does not apply to goods that do not infringe any IPRs in a members territory |
Others: No such limitation should exist. |
| Article 1.X: (Principles) | Aus/NZ/Sing/Can: Should add on article that outlines principles of IP enforcement, such as technology dissemination and transfer, a manner conducive to social and economic welfare, measures necessary to protect health and nutrition, etc. |
Others: Would not have this article and probably rely on a preface. |
| Article 2.x.4: General enforcement obligations (government liability) | US: Parties can limit remedies against governments |
Others: No such limitation |
| 2.1.1: Availability of Civil Procedures (scope of availability) | US/Mex/Can/Aus/Sing/NZ: Civil remedies available for copyrights, related rights and TMs |
EU/J/CH: Civil remedies will be available to enforce any IPRs |
| 2.x.1: Injunctions (scope of availability) | US/Can/NZ/Aus/Sing/Mex: Injunctions available for copyrights, related rights and TMs |
EU/J: Injunctions available for any IPRs |
| 2.x.1: Injunctions (scope of availability) | Can/Aus: Injunctions subject to statutory limitations under domestic law |
Others: No identified limit. |
| 2.x.1: Injunctions (third parties) | EU/CH: Rights holders in position to apply for injunction against intermediaries who services used by third party to infringe IP right [NZ/Mor/Mex want this permissive] |
US/NZ/Can/Aus/Mex/J: Oppose this provision. |
| Article 2.2: Damages | US: Damage provisions apply to copyright, related rights, and TMs |
EU: Damage provisions apply to all IPRs |
| Article 2.3: Other remedies (scope of availability destruction) | US/Aus/Can/Sing/Kor/NZ/Mex: Courts can order destruction for pirated or counterfeit goods |
EU/J/CH: Courts can order destruction for any infringing goods. |
| Article 2.4: Information related to infringement (scope of authority’s power) | US/Can/NZ/Aus/Sing/Mex: Courts can order information be disclosed about the infringement in the case of pirated/counterfeit goods |
EU/J/CH: Courts can order information about infringement be disclosed about the infringement regardless of the type of infringement. |
| Article 2.5: Provisional measures (scope of procedures) | Can/Aus/Mex: Provisional measures should only be available for copyright, related rights and TMs |
EU/J/CH: Provisional measures available for any IPR infringement |
| Article 2.5.2: Provisional Measures (Scope of evidence gathering) | US/J/NZ/MX/Aus: Judicial authorities can order the seizure of suspecting infringing goods and other evidence in the case of copyright, related right or TM counterfeiting |
Others: Judicial authorities can order seizures for any type of infringement |
| Article 2.X.2: Scope of Border Measures | US/Sing/J: Border measures should be applied at least to copyright, related right and TM infringement and can be for other infringements |
EU/CH: No recognition of any limits or optional expansion on the application of border measures |
| Article 2.X: De minimis provision | NZ/Aus/Can/Sing/Kor/J: De minimis exception should include goods sent in small consignments |
Others: Small consignments not protected by de minimis exception. |
| Article 2.6: Application by Rights Holders for border suspension (scope of availability of suspension, both type of IPRs and obligation regarding goods in transit) | US/J/CH/Mex: Each party shall provide procedures to seize pirated copyright or counterfeit trademark goods at border when imported and may do so for in-transit goods |
EU/Kor: Each party shall provide measures to seize any type of infringing goods at border being imported, exported or in transit (EU is alternatively proposing more general wording that parties shall provide procedures to seize goods at border for infringing IPRs (without explicitly distinguishing import/export/transit) |
| Article 2.7: Ex officio border action (scope: pirated/counterfeit vs all infringing) | Others: Customs officials may act on their own initiative to seize pirated copyright or counterfeit trademark goods |
EU/CH: Customs officials may act on their own initiative to seize any type of infringing goods at border |
| Article 2.7: Ex officio border action (scope: imported/exported/in transit vs any infringing good) | US/J/Mex/Aus/Can/NZ/Sing: Customs officials may act on goods which are imported/exported/in transit |
EU: Proposes more general language that customs officials can act on any type of infringing good, which specifying imported/exported/transit |
| Article 2.10: Determination as to Infringement
Article 2.11: Remedies Article 2.13: Disclosure of Information |
All three articles subject to scope – ie. copyright, related rights and TMs vs. all IPRs | All three articles subject to scope – ie. copyright, related rights and TMs vs. all IPRs |
| Article 2.14.1: Criminal Offenses (commercial scale and end users) | US/J/CH: Acts on a commercial scale for criminal offense MAY exclude end user acts |
EU: Acts on a commercial scale for criminal offenses DOES exclude end user acts. [provision under internal examination in the EU] |
| Article 2.14.3: Criminal Offenses (anti-camcording offense) | Others: Camcording in a theatre is an offense. |
EU/Sing: Delete this provision. |
| Article 2.18: Enforcement in the digital environment (scope of rights protected) | US/Aus/NZ/Can/Sing/MX: Parties shall provide measures to permit effective enforcement of copyright, related rights and trademark rights |
EU/J/CH: Parties shall provide measures to permit effective enforcement of all IPRs |
| Article 2.18.3(c): Necessary conditions for ISPs to qualify for safe harbour | US: ISPs must not be receiving financial benefit directly attributable to the infringing activity | Others: No such requirement |
littlebear
Ip enforcement has no effect on the other side of the world, cough cough, n.koea…