Anti counterfeiting trade agreement

Talks on the controversial Anti Counterfeiting Trade Agreement are said to be nearing end with the round of negotiations held in Japan at the end of September.

Talks on this agreement commenced in 2007 with the participation of Australia, Austria ,Belgium, Canada ,Cyprus, Czech Republic, Denmark, Estonia , Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Korea, Latvia, Lithuania, Luxembourg, Malta, Mexico, Morocco, Netherlands, New Zealand, Poland, Portugal, Romania, Singapore, Slovakia, Spain, Sweden, Switzerland, UK, US and the EU.

The agreement aims to target counterfeiting and piracy and is expected to cover all types of intellectual property, including patents and geographical indications.

Once the agreement is finalised, member parties to the agreement will have two years to sign and ratify the agreement.

Although secrecy surrounded the negotiations in the early stages, giving fears as to what the agreement would entail, a draft text which has been released in early October is now appearing on websites of many of the participating governments.

Officials have said that the text was over 99% agreed and the remaining issues could be ironed out through ‘email contact’ during the next few weeks.

The US Trade Representative, in a statement calling for a quick conclusion of the negotiations, has said: “This work represents a significant victory for those who care about protecting and enforcing intellectual property rights.”

Critics of the agreement consider the terms of the agreement going beyond what is necessary to target counterfeiting and that it would create new intellectual property protection that surpass the WTO agreement on intellectual property.

They also fear that it would threaten internet freedom, access to technology and the availability of medicine in poor countries.

It is understood that during the recent negotiations, some of the controversial issues in the past negotiations have been dropped.

One such provision which has been dropped is that internet service providers would have been required to provide information about customers who download unlawfully copied music.

 The draft text as at present gives the option to exclude travellers’ personal luggage from the provisions of the text, which would allay the fears that laptops and i-Pods would be seized at international borders.

Concerns have been raised whether this agreement would marginalise multilateral institutions such as the World Intellectual Property Organization (WIPO) because under the agreement, an ACTA Committee will be set up and would take decisions by consensus and be responsible for overseeing the implementation and functioning of the agreement.

 The terms of accession by new members will also be decided by this committee.

There appears to be no mention of a dispute settlement mechanism.

One important clause in the agreement is that patents have been excluded from border measures.

It means that patent holders of a drug in the EU but not in another developing country would not have recourse under the agreement to petition Customs authorities to seize generic versions en route from one developing country to another developing country.

The importance lies in that there have been some recent cases where some developed countries took such action.

The Anti Counterfeiting Trade Agreement once finalised and implemented might have far reaching effects. How the agreement would relate to the work of other multilateral agencies will have to be seen in time to come.



(Manel de Silva holds an Honours Degree in Political Science from the University of Ceylon, Peradeniya and has engaged in professional training in Commercial Diplomacy at ITC and GATT. She has served as a trade diplomat in several Sri Lankan Missions overseas and was the first female Head of the Department of Commerce as Director General of Commerce.)