Anti-Counterfeiting Trade Agreement Research Articles

Applying Best Practice Principles to International Intellectual Property Lawmaking

This article applies the Max Planck Principles on Intellectual Property Provisions in Bilateral and Regional Agreements to several recently established or still-being-negotiated international lawmaking instruments. It identifies recent, fundamental changes and overarching patterns in the evolution in the procedures, institutions, and substantive outcomes of international intellectual property lawmaking. Specific analysis is provided of the Principles’ potential application to the Anti-Counterfeiting Trade Agreement (ACTA), the Trans-Pacific Partnership Agreement (TPP), the Comprehensive Economic and Trade Agreement (CETA), the Pan-African Intellectual Property Organization (PAIPO), and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled (VIP Treaty). The article concludes that the Principles and other best practice guidelines for international intellectual property lawmaking can be usefully applied beyond orthodox bilateral and regional trade agreements. By adhering to the Principles, international lawmakers can help make the global knowledge governance system more transparent, participatory, legitimate, and effective.

Speaking for Freedom, Normalizing the Net?

ABSTRACT This article focuses on the efforts of large intellectual property exporters, such as the United States, to curtail Net freedoms by means restrictive copyright and anti-circumvention measures through the Anti-Counterfeiting Trade Agreement (ACTA), other international agreements, and reforms of national legislation. These efforts have upset the historical balance between owners and users of copyright, leading to widespread global resistance. The defeat of the ACTA in Europe may represent the last hurrah of the U.S. and the European Union to globalize their norms of digital intellectual property rights. However, the U.S. and EU can still impose their standards on a bilateral basis.

ACTA and the Enforcement of Copyright in Cyberspace: the Impact on Privacy

AbstractAs the reach of the Internet expands, governments increasingly seek to introduce initiatives aimed at controlling individuals' online activity. One such initiative, aimed, inter alia, at introducing enhanced online copyright enforcement standards, is the Anti‐Counterfeiting Trade Agreement (ACTA). The paper analyses a possible effect of Art. 27(3) of the agreement on the data protection and privacy rights, as spelled out in the EU legal order. Firstly, the EU legal framework on Internet surveillance for copyright enforcement will be addressed. Next, the principles and safeguards applicable to data processing in the context of communications surveillance will be illustrated with reference to the jurisprudence of the European Court of Human Rights. It will be argued that ACTA, if interpreted broadly and implemented without safeguards, would provide an incentive for graduated response systems, which, as it will be shown on the example of the French graduated response, may trump privacy rights on a massive scale.

The Rise and Fall of the Anti-Counterfeiting Trade Agreement (ACTA): Lessons for the European Union

This article revisits the arguments, debates and controversies that led up to the European Parliament’s rejection of the Anti-Counterfeiting Trade Agreement (ACTA), reflects on what might happen once the Court of Justice of the European Union (CJEU) has clarified the implications of the agreement for fundamental rights and freedoms in the European Union (EU), and evaluates the implications for the EU of the scrutiny of international agreements with provisions on intellectual property rights in the future. The article undertakes these tasks in four stages. First, it examines how Parliament was able for the first time to exercise its power of veto over a draft international agreement negotiated by the Commission on behalf of the EU under the consent procedure of the Treaty on the Functioning of the European Union (TFEU). Second, it reconsiders the rationale for ACTA in terms of why the agreement was perceived as being necessary in the first place, given that other international fora existed for intellectual property enforcement issues to be addressed. Third, the article reflects on the reasons why ACTA became so controversial that it became the focus of unprecedented public concern in the EU and its Member States, which particular attention paid to lack of transparency in the negotiating process, concerns that fundamental rights and freedoms in the EU would be undermined by provisions of ACTA, and concerns that the agreement would conflict with the acquis communautaire of the EU and with the WTO TRIPS Agreement. Fourth, the article concludes by considering what lessons can be learned for the future.

Internet Society Issues Paper on Intellectual Property on the Internet

Over the past years, the idea of how to reconcile intellectual property rights and the Internet technologies and platforms has become a pivotal point of all Internet governance discussions. With the emergence of the Internet as a means of communication, creativity, innovation and ideas and with the increasing accessibility to information, traditional concepts of intellectual property appear increasingly antiquated and inapplicable in a space where information is democratized, people become increasingly more empowered to create, exchange and distribute content and innovation and creativity proliferate. For the Internet Society, policy and technology discussions regarding the relationship between the Internet and intellectual property should continue to address the multiple challenges imposed by the nature and architecture of the Internet. At the same time, we feel that the time is right for the Internet community to reflect and strategize on how to create a harmonious nexus between Internet platforms and intellectual property regimes. In this respect, we believe that a good starting point is the setting of some minimum standards of process and substance that could facilitate and guide such discussions. An important point for the Internet Society in submitting this issues paper is the understanding that intellectual property discussions, irrespective of whether they reflect trademark, copyright or patent considerations and, as long as they primarily relate to Internet concerns or propositions, are part of the wider Internet governance discussions. This pragmatic rationalization is significant in making some subsequent determinations relating to the structure, design and ultimate approach of such discussions. To this end, the Internet Society urges all intellectual property considerations of policy to submit to the following minimum standards: • Intellectual Property and Multistakeholder Governance: All discussions about intellectual property in the Internet should be conducted under a multistakeholder framework. • Intellectual Property and Transparency: the need for transparency is reflected both in the Geneva Principles as well as in the Open Government Paradigm. The Internet Society believes that this need should further be reflected in agreements like the Anti-Counterfeiting Trade Agreement (ACTA), the Trans-Pacific Partnership Agreement (TPP) and the Canada-Europe Comprehensive Agreement (CETA). • Intellectual Property and the Rule of Law: Intellectual property should be based on principles such as due process, equality of rights, fairness, transparency, the right to be heard and legal certainty. • Intellectual Property and Internet Architecture: The Internet Society has long recognized that the infringement of intellectual property rights is a critical issue that needs to be addressed, but, at the same time, it must be addressed in ways that do not undermine the global architecture of the Internet or curtail internationally recognized rights. • Innovation without permission: All intellectual property laws and policies should bear in mind the Modern Paradigm for Standards Development, shaped by adherence to the following principles: cooperation; adherence to principles including due process, consensus, transparency, balance and openness; collective empowerment; availability; and, voluntary adoption. Based on these observations and taking stock of the way the debate has been unfolding over the past few years, the Internet Society would like to take the opportunity and make some propositions, which we believe should transpire all policies on intellectual property. At its most basic and fundamental level, the Internet Society believes that all issues pertaining to the way intellectual property rights are expressed in the Internet space can only be addressed efficiently and systematically through an inclusive and open framework. This makes multistakeholder governance a top priority for us, because we believe that it is currently the only sustainable governance model for (public policy) issues relating to the Internet and its platforms.

Constituting, Limiting, Regulating and Justifying Multilevel Governance of Interdependent Public Goods: Methodological Problems of International Economic Law Research

This contribution discusses legal and methodological problems of multilevel governance of the international trading, development, environmental and legal systems from the perspective of “public goods theories” and related legal theories. The state-centred, power-oriented governance practices in worldwide organizations fail to protect effectively human rights, transnational rule of law and other international public goods for the benefit of citizens. Their criticism by civil society, democratic parliaments and courts of justice prompts increasing opposition to non-inclusive, intergovernmental rule-making, as in the case of the 2011 Anti-Counterfeiting Trade Agreement rejected by the European Parliament. The “democracy deficits” and morally often unjustified power politics underlying “Westphalian intergovernmentalism” weaken the overall coherence of multilevel regulation of interdependent public goods that interact “horizontally” (e.g., the monetary, trading, development, environmental and related legal systems) as well as “vertically” (e.g., in case of “aggregate public goods” composed of local, national, regional and worldwide public goods). The “laboratory” of European multilevel governance offers lessons for reforming worldwide governance institutions dominated by executives. The integration of nation states into an interdependent, globalized world requires a multilevel integration law in order to protect transnational public goods more effectively. Legal and constitutional theories need to be integrated into public goods research and must promote stronger legal, judicial and democratic accountability of intergovernmental rule-making vis-a-vis citizens on the basis of “cosmopolitan constitutionalism” evaluating the legitimacy of national legal systems also in terms of their contribution to protecting cosmopolitan rights and transnational public goods.

Relations between the TRIPS Agreement and the Anti-Counterfeiting Trade Agreement: A Plurilateral Instrument Having Multilateral Functions with Little Multilateral Process

The Anti-Counterfeiting Trade Agreement was negotiated among developed and some more advanced developing countries to enhance the enforcement aspects of intellectual property rights protection. The main purpose of it was to raise the international standards of enforcement through establishing a plurilateral agreement. The agreement has its multilateral functions partly because of the nature of the agreement and partly because of the MFN obligations under the TRIPS Agreement. For non-Parties, the intellectual property rights of their nationals are to be protected by the agreement because of the MFN obligations under the TRIPS Agreement. Although this is theoretically beneficial to non-Parties, they are not to receive substantial benefits mainly because non-Parties are mostly not the major origins of intellectual property right holders. However, the agreement is to adversely affect the products or services coming from all WTO Members, whether or not they are the Parties. Developing countries producing products (such as generic drugs) and those in need of such products could be adversely affected by such higher standards. Since the agreement has such multilateral functions and since there is a lack of multilateral process in the enactment of this plurilateral agreement, there is a need to cope with the problem. The paper proposes some steps to be taken by the Parties to reduce the concerns of such multilateral function so that it will be more compatible with multilateral system. The steps include the establishment of regular consultation mechanism with non-Parties, the publishing of information concerning the implementation of the agreement to reflect whether there is a genuine manner of carrying out the higher standards of enforcement and the proper terms to be drafted in favour of developing country members of the WTO to attract more non-Parties to join the agreement and to reduce the gap between the plurilateral agreement and the multilateral system.

Copyright enforcement in the digital age: a post-ACTA view on the balancing of fundamental rights

The ratification process of the Anti-Counterfeiting Trade Agreement (ACTA) in the European Union has raised many (academic and non-academic) questions on various aspects of the enforcement of intellectual property rights (IPR), one of them being the relation between copyright enforcement and the fundamental rights of (alleged) infringers. In this article, we analyse this relation in the context of the existing European framework, with particular attention for the pertinent decisions of the Court of Justice of the European Union (CJEU). We then assess whether the measures proposed in ACTA upset the balance set by the CJEU. While the rejection of ACTA by the European Parliament seems to relieve the most imminent threats, the review of the IPR Enforcement directive and other Commission initiatives, including bilateral agreements, should keep the discussion alive.

Goods in Transit: Enforcement of IP Rights by Customs Officers

A new problem has arisen in that customs authorities can enforce intellectual property rights with regard to goods in transit. Some WTO Members have not only imposed such border measures on goods in transit, but have also concluded the Anti-Counterfeiting Trade Agreement with an optional obligation to such enforcement. This article analyses the concept of transit trade and the obligations under the WTO agreements, the EU and its Members States’ practices, and China’s response in this regard.

Can hyperlinks and digital rights management secure affordable access to information?

Digital Rights Management Systems (DRMs) related control mechanism, which are analogous to and augment the exclusive rights, have been the subject of debate since the early 1980s. DRMs, which function like an electronic security guard that ‘never leaves its post, never takes a break and never sleeps,11Cameron, Alex, Digital Rights Management: Where Copyright and Privacy Collide (2004) 2 Canadian Privacy Law Review 14, p. 17. can invade the privacy of individuals, prevent competition and/or control access to a work that is not or is no longer copyright protected. Hyperlinks are citations of an electronic address, but when clicked they navigate the user to the source of further information, including codes circumventing DRMs. This article accepts that the excesses of DRMs can outreach copyright and/or contract law, but argues that DRMs provide an opportunity for innovative business models, which can both protect digital works and promote free use of hyperlinks. Part 1 outlines the background and legislative provisions related to DRMs. It contrasts the WIPO Copyright Treaty (WCT) 1996,22The WCT, (and the WIPO Performances and Phonograms Treaty – WPPT, containing similar provisions), are available at http://www.wipo.int/treaties/en/ [22/04/2012]. Articles 11 and 12, with corresponding provisions found in the implementing legislation of the US Digital Millennium Copyright Act (DMCA) 1998,33Digital Millennium Copyright Act, 1998 at http://copyright.gov/legislation/hr2281.pdf [18/04/2012]. and the EU Copyright Directive (EUCD) 2001.44[Copyright] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Official Journal L 167, 22/06/2001 P. 0010–0019. It also examines the intellectual property aspects of the Trans-Pacific Partnership (TPP) and Europe's Anti-counterfeiting Trade Agreement (ACTA).55The TPP, also known as the Trans-Pacific Strategic Economic Partnership Agreement, which came into effect on 28 May 2006 and was initially between Singapore, New Zealand, Chile and Brunei is currently negotiated by other countries in the region including Australia, Canada, Japan and United States; negotiations are conducted in secret and the text is not publicly available.ACTA is between the EU and Australia, Canada, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the US and is available at http://register.consilium.europa.eu/pdf/en/11/st12/st12196.en11.pdf [26/6/2012]. Part 2 debates opposing academic opinion and comments on case law relating to DRMs, including the use of hyperlinks as a way of trafficking circumvention technology and/or facilitating unauthorised access to a copyright work. It assesses the extent to which DRMs might inhibits the development of new products, prevents competition, or invades the privacy of individuals, and points to the opportunities a consumer group-rightholder negotiated model end user licence can offer. Part 3 concludes that DRMs bolsters the clutches of the rightholder, but reduce unauthorised access to information thus minimising revenue loss, which can make hyperlinked ‘consumer’ access to information ‘affordable,’ or even free.

Juxtaposed to ACTA or more of the Same? A Look at IP Enforcement under the EU’s Economic Partnership Agreements

Global intellectual property (IP) enforcement is a hot issue. The EU and the US, in particular, are committed to taking the level of protection beyond the minimum established by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994.This is evidenced, for example, by the EU's Global IP Enforcement Strategy of 2004, by the Anti-Counterfeiting Trade Agreement (ACTA) finalized in 2010 and by a number of bi- and plurilateral free trade agreements (FTAs) concluded in recent years. Some criticism has been voiced in civil society as well as in academic writing against this TRIPS-plus drive, particularly in relation to ACTA. In the context of EU-ACP trade relations, the EU has now drawn up a special kind of FTA, the so-called Economic Partnership Agreements (EPAs). Designed for developing countries, EPAs include a range of non-mercantilist goals. In accordance with this, EPAs were announced as the dawn of a new era in trade relations with developing countries. This article takes the controversial field of IP enforcement as an example for scrutinizing that new approach. As will be shown, a comparison of their rules on IP enforcement to standard IP enforcement provisions of a purely economic character, prominently the EU's domestic legislation, ACTA and general FTAs, sadly hints that any enthusiasm over EPAs in terms of development-friendliness may be premature. IP enforcement under EPAs lacks conceptual coherence and credibility in the implementation of development-related goals. This analysis is pinned against the background of a discussion of the overall role and effects of enforcement provisions in international trade agreements at the beginning and in the conclusion of this article.

Two Tales of a Treaty Revisited: The Proposed Anti-Counterfeiting Trade Agreement (ACTA)

Over the past four years, through a coordinated series of public announcements that seemed to have been stimulated in part by previously leaked documents, details gradually came to light concerning negotiations over a proposed new Anti-Counterfeiting Trade Agreement (ACTA). According to the governments involved in these closed-door “plurilateral” trade negotiations, the purpose of ACTA was simply to help fight the proliferation of counterfeit and pirated goods in international trade. From the outset, however, the negotiations were embroiled in controversy, for at least four reasons. First, while the negotiations were initially carried out behind closed doors, industry representatives were apparently being supplied with information that was not being disseminated to the public. Second, the “plurilateral” nature of the negotiations aroused suspicions that the ACTA negotiations were but the latest example of “forum-shifting” — a well-documented tactic that is apparently being deployed by owners of intellectual property (IP) in an effort to ratchet up up international standards for the protection of private intellectual property rights (IPRs). These procedural concerns about the conduct of the negotiations, in turn, contributed to two further suspicions about the substantive purpose and scope of ACTA. The first suspicion was that ACTA was simply an effort on the part of intellectual property owners to socialize the enforcement costs of their private IPRs by enhanced civil, criminal, and border enforcement proceedings and remedies. The second suspicion — generated in part by a leaked negotiating document — was that the focus of these civil, criminal, and border enforcement provisions would not be limited to targeting commercial trade in counterfeit and pirated physical goods, but would also extend to “significant willful infringements without motivation for financial gain to such an extent as to prejudicially affect the copyright owner (e.g., Internet piracy).” To the suspicious eye, this verbatim quote from the leaked document clearly seemed to be referring to digital file-sharing — a controversial consumer phenomenon, to be sure, but quite distinct from the issue of commercial trade in counterfeit and pirated physical goods.A particularly jolting development in the effort by critics to secure more specifics concerning the ACTA negotiations occurred in March 2009, when, notwithstanding President Obama's campaign promises of greater transparency in U.S. government policymaking, the Office of the U.S. Trade Representative (USTR) denied a Freedom of Information Act (FOIA) request for a copy of the ACTA discussion draft and related materials on the ground that they were “classified in the interest of national security.” While the invocation of national security may have been simply a ruse to camouflage and avoid exacerbating growing divisions among the negotiating parties, it proved useful to take this national security claim at face value, as it offered a starting point for this article’s predecessor — which sought “to provide two alternative tales of the treaty with a view to identifying and clarifying the various controversies currently surrounding the negotiations.”After revisiting the two tales told prior to the approval of the final draft of ACTA, this article will offer two additional cautionary tales about ACTA’s ultimate impact on the development of intellectual property enforcement standards.

Beyond the Text: The Significance of the Anti-Counterfeiting Trade Agreement

The Anti-Counterfeiting Trade Agreement (ACTA) aims to combat the proliferation of counterfeit and pirated goods ‘through enhanced international cooperation and more effective international enforcement’. Despite news reports and academic commentary to the contrary, the first part of this article demonstrates that the finalized version of the ACTA does not meaningfully enhance the international intellectual property (IP) law framework as it relates to international cooperation or international enforcement and therefore does not pose a substantial risk to the public or to domestic sovereignty. This is not to say that the ACTA does not have value; the second part of the article argues that the real significance of the ACTA lies not in its textual obligations but more in the effect it will potentially have as a starting point in multilateral and bilateral trade negotiations, as an alternative forum for IP rulemaking and on the ‘governance’ of international IP more generally.

‘SEIZING’ PHARMACEUTICALS IN TRANSIT: ANALYSING THE WTO DISPUTE THAT WASN'T

AbstractSeveral recent detentions of generic pharmaceutical products transiting through the European Union (EU) for suspected infringements of intellectual property rights raised serious concerns for public health advocates and threatened to expose systemic problems existing in the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The detentions not only garnered international attention, but India and Brazil formally began WTO dispute settlement proceedings against the EU. The parties recently reached a mutually agreed solution to the matter and the proceedings have been halted, leaving unanswered the complex legal and technical questions raised by the detentions of pharmaceuticals in transit. Despite a solution being reached in this dispute, the matter will undoubtedly resurface in the near future for a number of reasons. For instance, the EU is attempting to export its laws to its trading partners through the negotiation of free trade agreements and in other forums such as the recently concluded Anti-Counterfeiting Trade Agreement which increases the likelihood that similar detentions will occur at some point in the future. Moreover, recent trends in international intellectual property law indicate a move towards increased protection and enforcement in at least the short and medium term. The issue therefore offers the opportunity for rich legal analysis into an underexplored, yet increasingly important, aspect of WTO law.

Join the Club: The Implications of the Anti-Counterfeiting Trade Agreement's Enforcement Measures for Canadian Copyright Law

The Anti-Counterfeiting Trade Agreement (ACTA) is the most recent international agreement by which Canada and other countries have sought to strengthen the protection and enforcement of intellectual property rights. While it was originally feared that ACTA would impose obligations that are in tension with the principles of Canadian copyright law, the final outcome of the ACTA negotiations moderated or removed many of the most controversial provisions in the agreement and thus has alleviated many of the concerns about the impact of ACTA on Canadian copyright law. Canada has taken the first steps toward satisfying ACTA’s copyright obligations with Bill C-11, the Copyright Modernization Act, which addresses some of the agreement’s digital copyright measures. Some legislative change still remains before Canada will have fully met ACTA’s copyright obligations, in particular to enhance the powers of customs and border authorities to enforce intellectual property rights. This article discusses ACTA’s evolution, negotiations, final text, and the extent of its rightsholder orientation. It then details the differences between ACTA’s provisions and the current Canadian Copyright Act, as amended by the Copyright Modernization Act, identifies which obligations in ACTA require further amendment, and suggests how these obligations may best be implemented to reflect important values and principles underlying Canadian copyright law.

Public Interest Analysis of the US TPP Proposal for an IP Chapter

This briefing paper provides preliminary analysis of two leaked U.S. proposals for an intellectual property chapter in the Trans Pacific Partnership (TPP) agreement. The U.S. proposal, if adopted, would create the highest intellectual property protection and enforcement standards in any free trade agreement to date. Its provisions are primarily based on, and frequently go beyond, the maximalist and controversial standards of the Korea-US Free Trade Agreement (KORUS), the Anti-Counterfeiting Trade Agreement (ACTA) and US law, while negating the development-oriented flexibilities required by the 2007 New Trade Deal for developing countries and included in the US-Peru Free Trade Agreement. If adopted, the provisions would predictably lead to higher prices and decreased access to a broad range of consumer products in many TPP member countries, from medicines to textbooks to information on the internet, with little or no benefit from increased innovation, creativity or local economic activity. No country, including the US, has an interest in ceding this much policy flexibility to an international agreement. The proposal is particularly inappropriate for developing countries where the risks and effects of exclusionary pricing by monopolists are most acute.

WIPO and the ACTA threat

The Anti-Counterfeiting Trade Agreement (ACTA) has been seen as a potentially existential threat to the existing World Intellectual Property Organization (WIPO). The ACTA threat to WIPO has a number of predecessors. WIPO's centrality to international intellectual property norm-setting encountered its first major challenge in 1952 when the Universal Copyright Convention was established under UNESCO. It encountered a second major challenge with the establishment of the Agreement on Trade-Related Aspects of Intellectual Property (the TRIPs Agreement). The ACTA challenge thus potentially represents a third instance where a major competing norm-setting institution has challenged WIPO. This paper outlines the main proposals for an ACTA institution, the various possible forms that an ACTA-WIPO relationship could take, and various strategies that WIPO could use to maintain its role in the international intellectual property system. Finally, it reviews a number of public policy concerns that the institutional proposals for ACTA pose.

The Rise and Fall of the Anti-Counterfeiting Trade Agreement (ACTA): Lessons for the European Union

This article revisits the arguments, debates and controversies that led up to the European Parliament’s rejection of the Anti-Counterfeiting Trade Agreement (ACTA), reflects on what might happen once the Court of Justice of the European Union (CJEU) has clarified the implications of the agreement for fundamental rights and freedoms in the European Union (EU), and evaluates the implications for the EU of the scrutiny of international agreements with provisions on intellectual property rights in the future. The article undertakes these tasks in four stages. First, it examines how Parliament was able for the first time to exercise its power of veto over a draft international agreement negotiated by the Commission on behalf of the EU under the consent procedure of the Treaty on the Functioning of the European Union (TFEU). Second, it reconsiders the rationale for ACTA in terms of why the agreement was perceived as being necessary in the first place, given that other international fora existed for intellectual property enforcement issues to be addressed. Third, the article reflects on the reasons why ACTA became so controversial that it became the focus of unprecedented public concern in the EU and its Member States, which particular attention paid to lack of transparency in the negotiating process, concerns that fundamental rights and freedoms in the EU would be undermined by provisions of ACTA, and concerns that the agreement would conflict with the acquis communautaire of the EU and with the WTO TRIPS Agreement. Fourth, the article concludes by considering what lessons can be learned for the future.

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

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.

ACTA's Digital Chapter: remaining concerns and what can be done

The recently adopted Anti-Counterfeiting Trade Agreement (ACTA), and especially its ‘Digital Chapter’, has provoked heated debates and faced strong criticism from both academia and society in general. Although the final text of the Digital Chapter appears to have dropped some of the more controversial proposed provisions such as a ‘three-strike rule’, some problems remain. This article looks at these: whether ACTA establishes criminal liability for private file-sharers; what the ISP liability provisions mean; what the encouragement of ‘cooperative efforts within the business community’ might lead to; and to what extent the provisions on technological measures set WIPO-plus standards.