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 piracy.

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 privacy.

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.

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