Watered down anti-counterfeiting treaty nears conclusion

The final draft of the controversial Anti-Counterfeit Trade Agreement (ACTA) was largely agreed by delegates last weekend, and now looks likely to be signed off - with some minor amendments - in the coming weeks.

The breakthrough in negotiations between the parties involved in ACTA - composed of 40 industrialised nations including the USA, EU, Canada and Japan - came after the 11th round of talks held in Tokyo, Japan on October 2.

ACTA concentrates on laying down an international framework for the enforcement of intellectual property rights, including trademark infringement, and lays out provisions on "civil, criminal, and border enforcement measures," according to a European Commission statement available here.

The aim is for the treaty to become a global standard, signed up to by countries around the world.

The treaty has had its opponents from the start, however, amid accusations that the negotiating parties were acting secretively and trying to push through the treaty without an opportunity for public consultation. In the end, it took a challenge in the courts and several leaked documents to make the draft treaty available to the public.

An official draft was made available in April 2010, some four years after negotiations first commenced and only after the negotiation parties were rebuked by the European Parliament and other groups for their lack of transparency.

Critics have also suggested that without the involvement of China and other big manufacturing nations ACTA brings little to the table beyond the existing anti-counterfeiting mechanisms available under the WTO.

ACTA was designed as a broad-based treaty covering all aspects of IP enforcement, and has been developed very much with piracy of digital materials such as software, movies and audio in mind. However, opponents are concerned about the implications for wider commerce, including medicines.

Indian pharma group still has concerns

Shortly after the revised ACTA text was made available on October 2, trade organisations from countries outside the treaty signatories registered their disapproval. For example, the Indian Pharmaceutical Alliance - a lobbying group representing 15 Indian drugmakers - lost no time in claiming that ACTA could still be misused to block the trade in Indian-made generic medicines.

The IPA has pressed to limit the scope of ACTA to just trademark and copyright infringements, and at the moment it seems likely that patents will be excluded from the treaty - at least in the context of border enforcement - which should alleviate some of those concerns.

However, there have been cases of generics intercepted on the basis of suspected trademark infringement too. One example was the seizure in Germany of Indian-made amoxicillin in 2009, which led to a legitimate generic shipment being detained for a month while enquiries were made with GlaxoSmithKline, which sells the Amoxil brand of the antibiotic.

India has reportedly just dropped an earlier complaint at the World Trade Organisation (WTO) against the EU for seizures of legitimate generic medicines in transit by customs (see our article here).

Outside pharma, some of the key changes to earlier drafts in the latest text include that Internet service providers (ISPs) and search engines will no longer be held accountable for infringing activities by their customers. It also removes strictures on a number of highly disputed areas such as the right of consumers to 'unlock' digital material purchased legally - for example in order to back up a DVD on a PC.

Proposals in early drafts led to fears of draconian enforcement, for example consumers having their iPods seized because of illegally downloaded material at border controls.

The European Commission and other ACTA parties insist this is not the case, suggesting the agreement will only apply to infringements carried out on a commercial scale. Private acts of infringement will not fall within the scope, they assert.


Related articles:

ACTA goes public with draft agreement

European Parliament demands transparency on ACTA

NGOs slam EU customs seizures

USA keeps up ACTA pressure