The October 2, 2010 version of the ACTA text

The October 2, 2010 version of the ACTA text is now available. A copy is here.

See also: Areas where the Oct 2, 2010 ACTA text is inconsistent with U.S. law

Quick look

(revised 10:17 am, October 7, 2010)

ACTA is essentially a re-write of Part III of the TRIPS, the part of TRIPS dealing with the enforcement of intellectual property rights. How do Part III of the TRIPS and ACTA compare in terms of the frequency of terms?

Frequent of terms between Part III of the TRIPS and the October 2010 version of ACTA.

First thing we checked

The U.S. has bracketed footnotes saying patents do not apply to civil enforcement. Patent are out of border measures.

The agreement contains these provisions:

Safeguards

From the 1st page, which is not formerly given the title of a preamble, there are several references to safeguards, including these:

Intending to provide effective and appropriate means, complementing the TRIPS Agreement, for the enforcement of intellectual property rights, taking into account differences in their respective legal systems and practices;

Desiring to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;

Desiring to address the problem of infringement of intellectual property rights, including that which takes place in the digital environment, and with respect to copyright or related rights in particular in a manner that balances the rights and interests of the relevant right holders, service providers and users;

Recognizing the principles set out in the Doha Declaration on the TRIPS Agreement and Public Health, adopted on November 14, 2001, by the WTO at the Fourth WTO Ministerial Conference, held in Doha, Qatar;

It is not clear as to the legal status is of the 1st page of the document. The negotiators rejected proposal to include some of these safeguards in the body of the agreement.

Some other safeguards made it into the articles of the agreement, including, for example, these:

ARTICLE 1.2: NATURE AND SCOPE OF OBLIGATIONS
3. The objectives and principles set forth in Part I of the TRIPS Agreement, in particular in Articles 7 and 8 shall apply, mutatis mutandis, to this Agreement.

This is a helpful positive inclusion in the text. The word privacy does not appear in the TRIPS, the WIPO WCT or the Berne Convention. It appears 6 times in ACTA, which is a welcome development. One such reference is Article 1.4.2, which reads as follows:

ARTICLE 1.4: PRIVACY AND DISCLOSURE OF INFORMATION

2. When a Party provides written information pursuant to this Agreement, the Party receiving the information shall, subject to its domestic law and practice, refrain from disclosing or using the information for a purpose other than that for which the information was requested or required, except with the prior consent of the Party providing the information.

KEI notes ACTA lacks the stronger safeguards regarding competition policy found in Article 40 of the TRIPS.

The ACTA does NOT include the references to “fair use, fair dealing, or their equivalents” that was at one point proposed for the section of the text.

In ARTICLE 2.18, concerning, ENFORCEMENT IN THE DIGITAL ENVIRONMENT, there is this safeguard.

8. In providing adequate legal protection and effective legal remedies pursuant to paragraphs 5 and 7, each Party may adopt or maintain appropriate limitations or exceptions to measures implementing paragraphs 5, 6 and 7. Further, the obligations in paragraphs 5, 6 and 7 are without prejudice to the rights, limitations, exceptions, or defenses to copyright or related rights infringement under a Party’s law.

Also useful is ARTICLE 1.2: NATURE AND SCOPE OF OBLIGATIONS (see below), and ARTICLE 2.X: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT, including in particular this language.

3. In implementing this Chapter, each Party shall take into account the need for proportionality between the seriousness of the infringement, the interests of third parties, and the applicable measures, remedies and penalties.

Definitions

Section B: General Definitions
ARTICLE 1.X: DEFINITIONS

intellectual property means all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of Intellectual Property Rights.

KEI comment: this covers a lot of ground, including patents, copyrights and trademarks, and also industrial designs, geographical indications, layout-designs (topographies) of integrated, pharmaceutical and agricultural test data, sui generis protection of plant varieties, and trade secrets. The broad inclusion of all of these intellectual property rights in ACTA creates unintended consequences, as some of the enforcement provisions make no sense outside of the context of copyrights and trademarks.

counterfeit trademark goods means any goods, including packaging, bearing without authorization a trademark that is identical to the trademark validly registered in respect of such goods, or that cannot be distinguished in its essential aspects from such a trademark, and that thereby infringes the rights of the owner of the trademark in question under the law of the country in which the procedures set out in Section 2, 3, 4 and 5 of Chapter2 are invoked;

Compare to the TRIPS definition in Article 51, Suspension of Release by Customs Authorities.

TRIPS fn14 (a) “counterfeit trademark goods” shall mean any goods, including packaging, bearing without authorization a trademark which is identical to the trademark validly registered in respect of such goods, or which cannot be distinguished in its essential aspects from such a trademark, and which thereby infringes the rights of the owner of the trademark in question under the law of the country of importation;

pirated copyright goods means any goods that are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and that are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country in which the procedures set out in Sections 2, 3, 4 and 5 of Chapter2 are invoked;

Compare to the TRIPS definition in Article 51, Suspension of Release by Customs Authorities

TRIPS fn14 (b) “pirated copyright goods” shall mean any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.

In the TRIPS and in ACTA, the language is awkward concerning cases where goods are put on the market lawfully, but without the permission of the right owner, such as in the case of a compulsory license or an exception to rights. The TRIPS definitions, in the context of Suspension of Release by Customs Authorities, refer specifically to the border measures, while the ACTA definition are more general, and arguably more problematic, but are mitigated by other provisions in the TRIPS, such as Article 6 and 40, and a decision on the use of patent exceptions to import and export works in a 2000 case involving pharmaceutical drugs and paragraph 6 of the 2001 Doha Declaration (see discussion below).

The ACTA definition for pirated copyrighted goods, which applies to Sections 2, 3, 4 and 5 of Chapter 2, including welcome language that says that it is not piracy if the use is not “an infringement of a copyright or a related right under the law of the country,” language that addresses uses under exceptions.

Section 1: General Obligations

ARTICLE 1.2: NATURE AND SCOPE OF OBLIGATIONS

1. Each Party shall give effect to the provisions of this Agreement. A Party may implement in its domestic law more extensive enforcement of intellectual property rights than is required by this Agreement, provided that such enforcement does not contravene the provisions of this Agreement. Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own
legal system and practice.
2. Nothing in this Agreement creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and enforcement of law in general.

CHAPTER TWO LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

Section 2 Civil Enforcement/fn2

The US and Europe are in a major dispute the inclusion of patents in the civil enforcement section, as expressed in the bracketed footnote 2.

fn2 {US: For the purpose of this Agreement, Parties agree that patents do not fall within the scope of this Section.}

Note that the resolution of this footnote will also determine if Patents are included in Section 5.

There is some welcome language in Article 2.X.3.

ARTICLE 2.X: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT

3. In implementing this Chapter, each Party shall take into account the need for proportionality between the seriousness of the infringement, the interests of third parties, and the applicable measures, remedies and penalties.

The ACTA text on injunctions are similar, but not identical, to the TRIPS provisions on the same topic. I have put in italics the parts of the text which illustrate the differences.

ACTA: ARTICLE 2.X: INJUNCTIONS
1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to issue an order against a party to desist from an infringement, and inter alia, an order to that party or, where appropriate, to a third party over whom the relevant judicial authority exercises jurisdiction, to prevent infringing goods from entering into the channels of commerce.

2. Notwithstanding the other provisions of this Section, a Party may limit the remedies available against use by government, or by third parties authorized by a government, without the authorization of the right holders to the payment of remuneration provided that the Party complies with the provisions of Part II of the TRIPS Agreement specifically addressing such use. In other cases, the remedies under this Section shall apply or, where these remedies are inconsistent with a Party’s law, declaratory judgments and adequate compensation shall be available.

TRIPS: Article 44 Injunctions

1. The judicial authorities shall have the authority to order a party to desist from an infringement, inter alia to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right, immediately after customs clearance of such goods. Members are not obliged to accord such authority in respect of protected subject matter acquired or ordered by a person prior to knowing or having reasonable grounds to know that dealing in such subject matter would entail the infringement of an intellectual property right.

2. Notwithstanding the other provisions of this Part and provided that the provisions of Part II specifically addressing use by governments, or by third parties authorized by a government, without the authorization of the right holder are complied with, Members may limit the remedies available against such use to payment of remuneration in accordance with subparagraph (h) of Article 31. In other cases, the remedies under this Part shall apply or, where these remedies are inconsistent with a Member’s law, declaratory judgments and adequate compensation shall be available.

KEI note: The ACTA does not permit the elimination of injunctive relief in cases where there is no remuneration paid. This is contrary to the provisions in U.S. law eliminating injunctions and damages against certain health care workers, or for manufacturers of biosimiliar drugs, in cases involving patents not previously disclosed by the incumbent drug company. ACTA seems to eliminate the limitation on the TRIPS, which concerns injunctions in cases where a person does not have prior “reasonable grounds to know that dealing in such subject matter would entail the infringement of an intellectual property right.” This makes the ACTA contrary to current U.S. laws concerning infringement of trademarks by newspapers and online publications, among other things.

ISPs are quite unhappy with the October 2010 language on injunctions.

DAMAGES

The ACTA provisions on damages are a significant change from the TRIPS. The TRIPS provisions are just 122 words. The ACTA provisions on damages are 498 words (including the footnote). The damages section is clearly contrary to laws in several countries, including the US. Particularly problematic is this text, which is not based upon national laws in any country:

In determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price.

These are the WTO requirements in TRIPS:

TRIPS: Article 45 Damages

1. The judicial authorities shall have the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person’s intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.

2. The judicial authorities shall also have the authority to order the infringer to pay the right holder expenses, which may include appropriate attorney’s fees. In appropriate cases, Members may authorize the judicial authorities to order recovery of profits and/or payment of pre-established damages even where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity.

This is the text in the ACTA draft:

ACTA ARTICLE 2.2: DAMAGES

1. Each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of intellectual property rights, to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement. In determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price.

2. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer to pay the right holder the profits of the infringer that are attributable to the infringement. A Party’s legal system may presume the profits of the infringer to be the amount of damages referred to in paragraph 1.

3. At least with respect to works, phonograms, and performances protected by copyrights or related rights, and in cases of trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following:

(a) pre-established damages, or
(b) presumptions for determining the amount of damages/fn3/ sufficient to compensate the right holder for the harm caused by the infringement, or
(c) at least for copyright, additional damages.

4. Where a Party provides the remedy set out in paragraph 3(a) or 3(b), that Party shall ensure that either its judicial authorities or the right holder has the right to choose such a remedy as an alternative to the remedies referred to in paragraphs 1 and 2.

5. Each Party shall provide that its judicial authorities, where appropriate, shall have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of at least copyright or related rights, or trademarks, that the prevailing party be awarded payment by the losing party of court costs or fees and appropriate attorney’s fees or any other expenses as provided for under that Party’s domestic law.

/fn3/ Such measures may include the presumption that the amount of damages is (i) the quantity of the goods infringing the right holder’s intellectual property right in question and actually assigned to third persons, multiplied by the amount of profit per unit of goods which would have been sold by the right holder if there had not been the act of infringement, or (ii) a reasonable royalty or (iii) a lump sum on the basis of elements such as at the least the amount of royalties or fees which would have been due if the infringer had requested authorization to use the intellectual property right in question.

ARTICLE 2.3: OTHER REMEDIES

KEI was written about the “other remedies” section of ACTA earlier, and the points made then still hold.

It is helpful that the ACTA now has narrowed this section to “At least with respect to pirated copyright goods and counterfeit trademark goods,” which for the first time accommodates the exceptions to this rule now mandated in TRIPS Article 37, for layout-designs (topographies) of integrated circuits. The ACTA language does conflict with several national copyright and trademark laws, however, unless the term “except in exceptional circumstances” can be read to include permit statutory exceptions.

The ACTA text now provides that:

1. At least with respect to pirated copyright goods and counterfeit trademark goods, each Party shall provide that in civil judicial proceedings, at the right holder’s request, its judicial authorities shall have the authority to order that such goods be destroyed, except in exceptional circumstances, without compensation of any sort.

As noted in our earlier note, Germany, Denmark, Finland, Italy, Sweden, Switzerland and the United States all have statuatory exceptions that appear to be countrary to the plain text in ACTA.

ARTICLE 2.5: PROVISIONAL MEASURES

The language in Article 2.5.3 is contrary to certain statutory exceptions in several national laws. For reasons that are unclear, ACTA negotiators were unwilling to admit the obvious, and provide for statutory exceptions to the general rule.

3. In civil judicial proceedings concerning at least copyright or related rights infringement and trademark counterfeiting, each Party shall provide that its judicial authorities shall have the authority to order the seizure or other taking into custody of suspected infringing goods, materials, and implements relevant to the act of infringement and, at least for trademark counterfeiting, documentary evidence, either originals or copies thereof, relevant to the infringement.

Section 3: Border Measures fn4, fn5, fn6

Here are the three important footnotes to the Border Measures section:

4 Where a Party has dismantled substantially all controls over movement of goods across its border with another Party with which it forms part of a customs union, it shall not be required to apply the provisions of this Section at that border.

5 It is to be understood that there shall be no obligation to apply the procedures set forth in this section to goods put on the market in another country by or with the consent of the right holder.

6 For the purpose of this Agreement, Parties agree that patents do not fall within the scope of this Section.

Footnote 4 protects common markets, such as the EU.

Footnote 5 protects parallel traded goods, when the goods are not put on the market under an exception or a compulsory license.

Footnote 6 excludes patents from the agreement, in language stronger than a “may” or “at least” approach. Patents are out of Chapter 2 Section 3, period.

Note the following:

1. Each Party shall provide procedures for import and export shipments:

2. Each Party may provide procedures for suspect goods in transit or in other situations where the goods are under Customs control:

Here “shall” is used for imports and exports, and “may” is used for in transit goods.

Footnote 5 concerns parallel trade.

ACTA fn5 It is to be understood that there shall be no obligation to apply the procedures set forth in this section to goods put on the market in another country by or with the consent of the right holder.

The equivlent text in TRIPS reads as follows:

TRIPS Fn 13 It is understood that there shall be no obligation to apply such procedures to imports of goods put on the market in another country by or with the consent of the right holder, or to goods in transit.

One concern regards goods put onto the market lawfully, without the consent of the right owner, such as works created to be accessible for persons who are blind or have other disabilities, under national compulsory licenses or exceptions.

While the TRIPS footnote is also limited to “with the consent of the right holder, or to goods in transit,” the TRIPS also has Article 6 on the Exhaustion of rights, and Article 40, both of which provide a legal basis for going further in the area of parallel trade.

This issue was raised with negotiators, in the context of the cross border transfers of accessible works for persons with disabilities, a topic that is currently under consideration in the WIPO SCCR.

The WTO considered and approved the use of cross border exceptions to patent rights under a “three step test” in the Canada/EU pharmaceutical case.

Canada – Patent Protection Of Pharmaceutical, Products, Report Of The Panel, WT/DS114/R, 17 March 2000

Canada was of the view that this element of the regulatory use exception . . . did not affect the core rights of a patent holder . . . and . . . it served the legitimate interests of third parties in other countries around the world. . . The following points were advanced in support of this view.

• Both the brand name and generic pharmaceutical industries were global in nature. Very few countries had fully integrated brand name or generic drug industries within their borders. Even in large countries, generic producers frequently had to obtain ingredients such as fine chemicals from producers in other countries. Many countries had no generic industries at all and had to obtain generic (as well as brand name) products from other countries. Smaller countries that did have generic industries did not have domestic markets sufficiently large to enable those industries to operate on an economic scale. Those industries had to export in order to be able to manufacture in sufficient quantities to achieve economies of scale, so that domestic consumers could receive the benefits of cost effective generic products.
• The United States agreed that a “pre-expiration testing” exception was a reasonable exception to the exclusive rights conferred under the TRIPS Agreement.270 However, the market in the United States was large enough for generic producers to manufacture on an economic scale. Very few countries were in that position. “Pre-expiration testing” exceptions that had the effect of confining all activities to a single country were of little use to countries that, unlike the United States, depended on international trade to obtain generic products.
• In fact, the “Bolar exemption” under United States law recognized one side of the international trade equation by expressly permitting imports. By including this provision, the United States Congress had clearly contemplated that some aspects of the “pre-expiration testing” process would take place in countries other than the United States.271 The Statement of Administrative Action by the United States Government in respect of the Uruguay Round Agreements Act expressly referred to the United States exemption as an example of a limited exception permitted under Article 30 of the TRIPS Agreement.272 Since the TRIPS Agreement required patent protection in all 134 WTO Members by the year 2005 at the latest, the drafters of the Statement of Administrative Action must have contemplated that other countries would have “pre-expiration testing” exceptions that would permit activities to be carried on for the purposes of obtaining regulatory approval in the United States. Canada’s limited exception was one such case.

Compare the 2000 WTO decision on cross border use of exceptions to this language in the ACTA in ARTICLE 1.X: DEFINITIONS, regarding pirated copyright goods:

pirated copyright goods means any goods that are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and that are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country in which the procedures set out in Sections 2, 3, 4 and 5 of Chapter2 are invoked;

The Article 1.X definition of pirated copyrighted goods, does appear to recognize lawful exceptions to exclusive rights, which is an improvement on some earlier versions of the text, and KEI notes the definition specifically applies to Chapter 2, Section 3 of ACTA, on border measures. Thus, it appears that the border provisions of ACTA will not in themselves be a barrier to cross border movement of copyrighted works created or disseminated under lawful exceptions to exclusive rights.

However, and this may be quite important, the ACATA definition of pirated copyrighted works does not address the cases where the infringement of works is anticipated by lawmakers and addressed as a limitation on remedies. This is not only an important element of U.S. law, including our own border measures, but it is an area of TRIPS and ACTA flexibility on injunctions that may play an important role in expanding access to orphaned copyrighted works.

In terms of existing U.S. law on border measures, consider 19 USC 1337 (l), which explicitly permits imports of infringing copyrighted works any articles “imported by and for the use of the United States, or imported for, and to be used for, the United States with the authorization or consent of the Government.”

TITLE 19 CHAPTER 4 SUBTITLE II
Part II—United States International Trade Commission
§ 1337. Unfair practices in import trade
a) Unlawful activities; covered industries; definitions
(1) Subject to paragraph (2), the following are unlawful, and when found by the Commission to exist shall be dealt with, in addition to any other provision of law, as provided in this section:
(A) Unfair methods of competition and unfair acts in the importation of articles (other than articles provided for in subparagraphs (B), (C), (D), and (E)) into the United States, or in the sale of such articles by the owner, importer, or consignee, the threat or effect of which is—
(i) to destroy or substantially injure an industry in the United States;
(ii) to prevent the establishment of such an industry; or
(iii) to restrain or monopolize trade and commerce in the United States.
(B) The importation into the United States, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee, of articles that—
(i) infringe a valid and enforceable United States patent or a valid and enforceable United States copyright registered under title 17; or
(ii) are made, produced, processed, or mined under, or by means of, a process covered by the claims of a valid and enforceable United States patent.

(d) Exclusion of articles from entry
(1) If the Commission determines, as a result of an investigation under this section, that there is a violation of this section, it shall direct that the articles concerned, imported by any person violating the provision of this section, be excluded from entry into the United States, unless, after considering the effect of such exclusion upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers, it finds that such articles should not be excluded from entry.
. . .
(i) Forfeiture
(1) In addition to taking action under subsection (d) of this section, the Commission may issue an order providing that any article imported in violation of the provisions of this section be seized and forfeited to the United States . . .
. . .
(l) Importation by or for United States
Any exclusion from entry or order under subsection (d), (e), (f), (g), or (i) of this section, in cases based on a proceeding involving a patent, copyright, mask work, or design under subsection (a)(1) of this section, shall not apply to any articles imported by and for the use of the United States, or imported for, and to be used for, the United States with the authorization or consent of the Government. Whenever any article would have been excluded from entry or would not have been entered pursuant to the provisions of such subsections but for the operation of this subsection, an owner of the patent, copyright, mask work, or design adversely affected shall be entitled to reasonable and entire compensation in an action before the United States Court of Federal Claims pursuant to the procedures of section 1498 of title 28.

Section 5: Enforcement of Intellectual Property Rights in the Digital Environment
ARTICLE 2.18, ENFORCEMENT IN THE DIGITAL ENVIRONMENT

1. Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an act of intellectual property rights
infringement which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.

“Intellectual Property Rights” are defined on page 4 of the text to include: “all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of Intellectual Property Rights.” If the proposed footnote 2 on page 6 is eliminated (it is now only supported by the U.S., weakly), patents will be included in Chapter 5, the so called Internet section of ACTA.

As noted above, there is this language concerning limitations and exceptions to rights.

8. In providing adequate legal protection and effective legal remedies pursuant to paragraphs 5 and 7, each Party may adopt or maintain appropriate limitations or exceptions to measures implementing paragraphs 5, 6 and 7. Further, the obligations in paragraphs 5, 6 and 7 are without prejudice to the rights, limitations, exceptions, or defenses to copyright or related rights infringement under a Party’s law.

CHAPTER THREE ENFORCEMENT PRACTICES

The views of “right holders and other relevant stakeholders” are included in the advisory groups mechanisms.

ARTICLE 3.1: ENFORCEMENT EXPERTISE, INFORMATION AND DOMESTIC COORDINATION

4. Each Party shall endeavor to promote, where appropriate, the establishment and maintenance of formal or informal mechanisms, such as advisory groups, whereby its competent authorities may hear the views of right holders and other relevant stakeholders.

CHAPTER FOUR INTERNATIONAL COOPERATION

A key section of Chapter Four concerns technical assistance. It reads as follows:

ARTICLE 4.3: CAPACITY BUILDING AND TECHNICAL ASSISTANCE
1. Each Party shall endeavor to provide, on request and on mutually agreed terms and conditions, assistance in capacity building and technical assistance in improving enforcement of intellectual property rights for Parties to this Agreement and, where appropriate, for prospective Parties to this Agreement. Such capacity building and technical assistance may cover such areas as:
(a) enhancement of public awareness on intellectual property rights;
(b) development and implementation of national legislation related to enforcement of intellectual property rights;
(c) training of officials on enforcement of intellectual property rights; and
(d) coordinated operations conducted at the regional and multilateral levels.

2. For the purposes of paragraph 1, each Party shall endeavor to work closely with other Parties and, where appropriate, countries or separate customs territories not a Party to this Agreement.
3. Each Party may undertake the activities described in this Article in conjunction with relevant private sector or international organizations. Each Party shall strive to avoid unnecessary duplication of the activities described in this Article with respect to other international efforts.

CHAPTER FIVE INSTITUTIONAL ARRANGEMENTS

The Chapter on Institutional arrangements is now 759 words. The most important Article is the one setting up the “ACTA Committee,” which anticipates future amendments to ACTA.

ARTICLE 5.1: THE ACTA COMMITTEE
1. The Parties hereby establish the ACTA Committee, and each Party shall be represented on that Committee.
2. The Committee shall:
(a) review the implementation and operation of this Agreement;
(b) consider matters concerning the development of this Agreement
(c) consider in accordance with Article 6.4 any proposed amendments to this Agreement;
(d) approve in accordance with Article 6.5.2 the terms of accession to this Agreement of any Member of the WTO seeking to become Party to this Agreement; and
(e) consider any other matter that may affect the implementation and operation of this Agreement.

Among other things, the ACTA Committee may adopt rules that “include provisions with respect to granting observer status,” as well as for “any other matter the Committee decides necessary for its proper operation.”

Requests to include language that the ACTA would operate in an open, inclusive and transparency manner were ignored.

CHAPTER SIX FINAL PROVISIONS

ACTA will be open for signature by participants in the negotiations for two years.

ACTA will come into force after six countries ratify the agreement.

A bit of a surprise here:

ARTICLE 6.6: TEXTS OF THE AGREEMENT

ARTICLE 6.7: DEPOSITARY
Japan shall be the Depositary of this Agreement.

Additional commentary:

• Michael Geist: ACTA Ultra-Lite: The U.S. Cave on the Internet Chapter, October 06, 2010.
• Letter from AmeriKat: ACTA – its baaaa-aaack! (Part I), 10 October 2010