[A2k] ACTA: USTR's talking points to WTO Council for TRIPS

Thiru Balasubramaniam thiru at keionline.org
Thu Nov 4 05:27:10 PDT 2010


ACTA: USTR's talking points to WTO Council for TRIPS
The following statement is the oral intervention made by USTR at the  
WTO Council for TRIPS (October 2010) regarding ACTA.

Talking Points of the United States for TRIPS Council Meeting of  
October 26, 2010
Agenda Item P
We would like to thank other delegations for their interest in the  
Anti-Counterfeiting Trade Agreement (ACTA). Delegations will recall  
that the United States and other delegations have been interested in  
discussing the issue of IP enforcement at this Council for many years  
and so we’re pleased to have another discussion today.

Counterfeiting and piracy continue to negatively impact States and  
companies. Unfortunately, today they are also increasingly affecting  
the everyday life of citizens. Besides the often-copied luxury goods  
and blockbuster movies, counterfeiters and pirates are not taking  
liberties with common household articles – everything from home  
appliances to toothpaste. From the perspective of public and consumer  
health and safety, the appearance of counterfeit medicines and items  
such as counterfeit spare parts for cars, buses, and planes poses a  
threat that cannot be ignored.

In that connection, the US delegation is pleased to provide an update  
on the status of the ACTA.  We discussed at length the importance of  
ACTA in combating the global problem of counterfeiting and piracy at  
last June’s meeting, so I will not repeat that intervention here. The  
11th and final round of the negotiations was held in Tokyo from  
September 23-October 2. Thereafter, negotiators released the almost  
final draft text that includes the highest standards for enforcement  
of intellectual property rights (IPR) ever achieved in an agreement  
with such broad and widespread participation.

As a preliminary matter, delegations who are interested in reviewing  
the current text, can review it on the USTR website (as well as the  
websites of the other negotiating partners). With respect to process,  
there are still a small number of outstanding issues that participants  
are working to resolve expeditiously, with a view to finalizing the  
text of the agreement as quickly as possible. The draft Agreement will  
undergo final legal review and be released to the public again before  
participants sign. Each signatory will then pursue its relevant  
procedures for approval and the agreement will enter into force after  
six signatories have deposited their acceptance of the ACTA.

The diverse participants in the negotiations are: Australia, Canada,  
the European Union (EU) represented by the European Commission and the  
EU Presidency (Belgium) and the EU Member States, Japan, Korea,  
Mexico, Morocco, New Zealand, Singapore, Switzerland and the United  
States of America.

A number of Members have expressed interest in ACTA today.

I note that the ACTA includes provisions allowing other WTO Members to  
apply for accession after a specified period, and we welcome all  
Members who are interested in enhancing IPR enforcement to consider  
joining the agreement. In that connection, we would welcome the  
opportunity to discuss that possibility with any Member that is  
interested in enhancing enforcement of IPR.

As we have previously stated, the goal of ACTA is to establish a state- 
of-the-art international framework that provides a model for  
effectively combating the global proliferation of commercial-scale  
counterfeiting and piracy in the 21st century.

The state-of-the-art framework calls for police and border officials  
to have authority and tools to effectively address large-scale  
infringements such as cargo containers loaded with counterfeit goods  
to protect the public and preserve markets for distributors of  
legitimate go[o]ds. These tools will include not only strong laws on  
the books, but also a network of similarly trained specialized  
enforcement authorities. The agreement also includes innovative  
provisions to deepen international cooperation and to promote strong  
enforcement practices.

I would like to highlight just a few of the key accomplishments of the  
ACTA that will provide important tools in the fight against combating  

First, ACTA will generally enable authorities responsible for  
enforcing criminal laws to act on their own initiative (“ex officio”)  
in context of piracy and counterfeiting cases, rather than waiting for  
a complaint. This fixes a gap in existing standards that has sometimes  
left police and prosecutors powerless to take action against  
counterfeiters and pirates without a complaint from a right-holder.

Second, ACTA will also clarify existing international requirements for  
the availability of criminal penalties when piracy or counterfeiting  
is carried out for commercial advantage. Companies that benefit from  
using pirated products, such as pirated software products, will be  
exposed to criminal penalties. This will help deter those companies  
from stealing copyrighted or trademarked products and using those  
products to make themselves more competitive.

Third, ACTA will establish new obligations on criminal seizure and  
destruction of fake goods, seizure of the equipment and materials used  
in their manufacture, and seizure of the criminal proceeds from piracy  
and counterfeiting offenses. This ensures that police and prosecutors  
will have state-of-the-art tools to crack down on counterfeiters and  
pirates, and to take away both ill-gotten gains and the tools of  
illicit trade.

Fourth, ACTA will clarify existing international requirements to  
protect against circumvention of digital security technologies (such  
as passwords or encryption). This protects the ability of legitimate  
online content providers to create innovative business models for  
securely distributing movies, games, software, music, and other  
content to customers.

Fifth, ACTA will require parties to address copyright piracy on  
digital networks, while preserving principles such as freedom of  
expression, fair process, and privacy. ACTA will be the first  
agreement of its kind to include an obligation to address the scourge  
of piracy over digital networks, and to do so in a way that respects  
fundamental values, such as freedom of expression, fair process, and  

Sixth, ACTA will enhance the international framework for civil  
enforcement provisions dealing with issues such as damages,  
provisional measures, recovery of costs and attorneys’ fees, and  
destruction of infringing goods. Private parties will have access to  
effective civil systems that crack down on counterfeiters and pirates,  
and will be able to obtain court orders to stop illegal activity, and  
to secure meaningful damages to remedy violations of their rights.

ACTA will also be the first agreement of its kind to promote several  
key best practices that contribute to effective enforcement of  
intellectual property rights. We appreciate the interest of some of  
our fellow Members in intellectual property rights enforcement and we  
look forward to continuing our discussion on this important issue in  
the Council.


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru at keionline.org

Tel: +41 22 791 6727
Mobile: +41 76 508 0997

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