ACTA: Does it Really Not Create Additional Rights for the IP Holder?

Abstract

The Anti Counterfeiting Trade Agreement (ACTA) is an instrument which is intended to establish international standards for the enforcement of intellectual property rights that address today’s challenges. Proponents of ACTA have confidently declared that the ratification of ACTA will bring into play a new 'gold' standard in the enforcement of intellectual property rights which is expected to have a domino effect and spread across the globe. Detractors of ACTA however, since the said agreement was originally proposed and negotiations between proposed parties began in 2007, have their reservations in the matter based on the numerous objections raised against the said agreement. Albeit that the underlying intention is the reduction of counterfeiting and piracy, specific provisions of ACTA effectively create additional substantive rights in favor of intellectual property holders with the availability of the new enhanced civil/criminal enforcement remedies. This article will, apart from examining the relevant text of ACTA on its own standing, also examine the said text with reference to relevant Australian laws/rules governing both civil/criminal court proceedings and the actions of government authorities in respect of the enforcement of intellectual property rights to highlight the express and implied additional substantive rights which ACTA grants to intellectual property holders.