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4/12/2012
Evaluation #4: Two Tales of a Treaty Revisited: The Proposed Anti-Counterfeiting Trade Agreement (ACTA)

The Anti-Counterfeiting Trade Agreement (ACTA) negotiations were shrouded in secret for years.[1] The secrecy spurred two suspicions about the nature of ACTA.[2] First, many believed that ACTA was a way for intellectual property (IP) owners to distribute the enforcement costs of IP rights through enhanced enforcement measures. The second suspicion was that the enforcement provisions would not simply apply to counterfeited and pirated goods in commerce. Many believed that ACTA would also target to “willful infringements without motivation for financial gain to such an extent as to prejudicially affect the copyright owner.”[3] The final draft confirmed that these beliefs were true. ACTA was designed to target counterfeit and pirated goods, enforce digital IP rights, and promote more stringent enforcement standards for goods in international trade.[4] Focusing on all three of the concerns had led to many countries to drop their support of the treaty. The article will explore the potential impacts, and benefits, of widespread ratification of ACTA.

One of ACTA’ most important benefits is its ability to curb international criminal and terrorist organizations.[5] For example, INTERPOL launched Operation Jupiter in 2005 to stop organized crime groups operating in South America from trafficking in counterfeit and pirated goods.[6] Over the course of the operation, hundreds of millions of dollars worth of pirated goods were seized from groups in multiple countries.[7]According to a report by the RAND Corporation, the location of Operation Jupiter has emerged as “the most important center for financing Islamic terrorism outside the Middle East.”[8]

In 2008, INTERPOL launched Operation Mamba in an attempt to curb the trafficking of counterfeit pharmaceutical products in Tanzania and Uganda.[9] The operation resulted in over 100 types of products being seized. These counterfeit drugs “pose a major risk to public health and are becoming increasingly prevalent in all parts of the world, particularly in Africa.”[10] In many of these countries, up to 30% of all drugs sold may be counterfeit. Many of these drugs are sold online, which may explain why the negotiations were concerned with extending IP enforcement provisions to the digital environment.[11] Most of the drugs “contain little or no active ingredient” and “have potential long term detrimental consequences on the effectiveness of real medicines.”[12] The sale of these drugs are also often directed to international criminal syndicates.

Developing countries are expectedly concerned with curbing international trade in

counterfeited and pirated goods. Developing countries that have entered into free trade

agreements with developed countries have strong incentives to stop the massive loss of

income due to the trafficking of pirated goods.[13] Many of these countries have become centers for smuggling pirated goods and have individual economic incentives to combat the trade of pirated goods.

One of the possible concerns during the ACTA negotiations was that ACTA would target the everyday activities of ordinary citizen instead of limiting its enforcement to goods in commercial trade. A leaked discussion paper explained that ACTA would extend to “willful infringements without motivation for financial gain to such an extent as to prejudicially affect the copyright owner”, such as digital infringements.[14] Many believed that ACTA would extend to many forms of digital file-sharing. The Summary of Key elements appeared to address the concern by indicating that “a de minimis exception that could permit travelers to bring in goods for personal use” was being considered.[15] However, a Canadian briefing indicated that the exception would be a source of controversy during the negotiation. Disagreement over the exception was one of the...
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