Anti-Counterfeiting Trade Agreement

Anti-Counterfeiting Trade Agreement
Name	Anti-Counterfeiting Trade Agreement
Date signed	2011-10-01
Location signed	Tokyo
Date effective	2014-01-01
Languages	English language, French language, Spanish language

Anti-Counterfeiting Trade Agreement

The Anti-Counterfeiting Trade Agreement was a proposed plurilateral treaty negotiated to establish international standards for intellectual property enforcement across borders. Negotiations brought together officials and representatives from multiple sovereign states and international organizations to address issues linked to copyright law, trademark law, and patent law while provoking debates involving privacy, civil liberties, and trade policy.

Background and Negotiation

Negotiations began after discussions at meetings of the World Trade Organization and the World Intellectual Property Organization, reflecting positions advocated by delegations from United States, European Union, Japan, Canada, Mexico, Australia, and South Korea. Delegates referenced precedent instruments such as the Agreement on Trade-Related Aspects of Intellectual Property Rights, the Berne Convention for the Protection of Literary and Artistic Works, and the Paris Convention for the Protection of Industrial Property to frame obligations and enforcement mechanisms. Stakeholders including representatives from Motion Picture Association of America, Recording Industry Association of America, European Commission, and national patent offices such as the United States Patent and Trademark Office participated alongside non-governmental organizations like Reporters Without Borders and Electronic Frontier Foundation. Negotiation rounds took place in venues like Geneva, Brussels, Washington, D.C., and Tokyo, and involved diplomats who had previously worked on accords such as the Trans-Pacific Partnership and the North American Free Trade Agreement.

Key Provisions and Legal Obligations

Draft provisions addressed criminal enforcement for willful infringement, civil remedies including injunctions and damages, border measures to detain suspected counterfeit goods, and obligations for online service providers. Texts referenced types of remedies found in the Trade-Related Aspects of Intellectual Property Rights and proposed standards resembling elements of the United States Digital Millennium Copyright Act and the European Union Copyright Directive. Provisions covered enforcement roles for customs administrations like U.S. Customs and Border Protection and European Anti-Fraud Office, and proposed coordination mechanisms similar to those used by the Interpol. The agreement touched on safe harbor concepts invoked in rulings by the European Court of Justice and the Supreme Court of the United States, and contemplated criminal penalties comparable to statutes such as the Copyright Act (United States) and Japan’s Copyright Act. Text also referenced procedural safeguards analogous to norms in the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

Signing, Ratification, and Entry into Force

Signatories included ministers from negotiating countries at a ceremony in Tokyo where delegations from United States, European Union member states represented through the European Commission, Japan, Australia, Canada, Mexico, and South Korea signed final protocols. Ratification processes invoked domestic legislative bodies such as the United States Senate, the House of Commons (United Kingdom), the Diet (Japan), the Parliament of Canada, and the Congress of the Republic of Mexico. Several national parliaments debated compatibility with constitutions including the Constitution of Japan and the Constitution of the United States. The agreement entered into force among ratifying parties on 2014-01-01, following deposit of instruments consistent with procedures used by treaties registered with the United Nations.

International Reactions and Controversies

The agreement prompted reactions from prominent public figures and institutions including statements from representatives of Google LLC, Apple Inc., Facebook, and Wikipedia-affiliated organizations, as well as criticisms from advocacy groups like the Electronic Frontier Foundation, Free Software Foundation, and Amnesty International. Protests in capitals such as London, Madrid, and Washington, D.C. echoed earlier demonstrations against policies debated in forums like the SOPA and PIPA campaigns and the ACTA protests in Poland. Academic critiques invoked analyses by scholars associated with Harvard University, Stanford University, Oxford University, and University of Cambridge. Media coverage appeared in outlets including The New York Times, The Guardian, Le Monde, Der Spiegel, and Nikkei Asian Review, while parliamentary inquiries were launched in bodies such as the European Parliament and national legislatures. Legal scholars compared contested elements to jurisprudence from the European Court of Justice and the Supreme Court of the United States, and civil society linked concerns to norms in instruments like the International Covenant on Civil and Political Rights.

Implementation and Enforcement in Participating Countries

Implementing legislation and enforcement actions involved agencies such as U.S. Customs and Border Protection, the United States Department of Justice, Japan Patent Office, European Union Intellectual Property Office, and national police forces cooperating with Interpol and Europol. Courts in jurisdictions including the Federal Court of Australia, the High Court of Justice (England and Wales), the United States Court of Appeals, and the Supreme Court of Japan interpreted enforcement measures against standards set by constitutional courts like the Constitutional Court of Spain and the Bundesverfassungsgericht. Trade ministries coordinated with customs authorities to apply border measures modeled on practices used by the World Customs Organization. Implementation raised litigation before arbitration panels constituted under mechanisms similar to those used by the World Trade Organization and invoked procedures referenced in the International Centre for Settlement of Investment Disputes.

Impact on Intellectual Property Policy and Innovation

Assessment of impact drew on empirical studies from institutions including World Bank, Organisation for Economic Co-operation and Development, European Bank for Reconstruction and Development, and research centers at Massachusetts Institute of Technology, Yale University, and University of California, Berkeley. Economists referenced models by scholars affiliated with National Bureau of Economic Research and findings in journals such as The Journal of Economic Perspectives and Harvard Law Review to debate effects on innovation policy and market entry for small and medium-sized enterprises. Industry associations like International Federation of the Phonographic Industry and International Trademark Association argued the agreement reduced counterfeiting, while open-access advocates from Creative Commons and GNU Project raised concerns about chilling effects on derivative works. Policy debates connected outcomes to trade negotiations such as the Transatlantic Trade and Investment Partnership and to governance in multilateral forums like the World Intellectual Property Organization.

Category:Treaties