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The Anti-Counterfeiting Trade Agreement (ACTA) – Dilly-dallying continues

The Anti-Counterfeiting Trade Agreement (ACTA) has been in the making for over five years and the date of signing ceremony - 27th September, 2011 did not see much headway in the proceedings. As per reports, on 1st October, 2011, eight countries including U.S. and Japan, signed ACTA. Australia, Canada, Morocco, New Zealand, Korea and Singapore are the other nations to ink the agreement in Tokyo. Though the European Union (EU) has veered around for a negotiated agreement, it has not signed ACTA citing procedural formalities. The agreement is open for signing till May, 2013.

The ACTA has encountered opposition, not just from EU but also Mexico, India and China. It seeks to provide for a plurilateral agreement binding the signatories to put in place an enforcement mechanism to protect IPR. The final draft tries to address the criticism of ACTA overriding TRIPS agreement stating that obligations under existing treaties would not be affected. However, it retains most of the other contentious provisions. The final draft provides for permission to Customs authorities to seize goods ‘in transit’, vests rights with the IPR holder to sharing of information on internet-related ‘alleged’ piracy and enjoins members to provide effective legal remedies against circumvention of effective technological measures.

The provisions relate largely to copyright, trademarks and counterfeit goods. The stringent nature of provisions which led to objections on infringing on fundamental rights of citizens continues to be present. For instance, TRIPS precludes ‘public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith in the course of the administration of that law’. But, ACTA provides for ‘No provision of this Chapter shall be construed to require a Party to provide for liability of officials for acts undertaken in the performance of their official duties.’ Further, suspected infringement can become a cause for action by the authorities and ‘suspect’ goods a can be seized.

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