Trade and Intellectual Property

The Anti-Counterfeiting Trade Agreement - Presentation by Douglas George Intellectual Property, Information and Technology Trade Policy Division (TMI) Roundtable ACTA Consultation, April 6, 2009

Why ACTA?

• Main objective: To establish new global standards for the enforcement of intellectual property rights (IPR) and provide for increased cooperation
• Global problem = global solution
• $200 billion annually - 2% of world trade
• Public health and safety risks
• Organized crime
• Little progress made on IP enforcement in traditional multilateral fora

ACTA Participants

• Australia
• Canada
• European Commission/EU
• Japan
• Korea
• Mexico
• Morocco
• New Zealand
• Singapore
• Switzerland
• United States

Why Canada is involved

• Importance of intellectual property protection in fostering innovation and promoting economic prosperity
• Bilateral relationship with key trading partners – U.S., Japan, EC/EU, Korea
• Risk to Canada of increasing presence of counterfeit/pirated goods
• Influence the outcome

ACTA: Chronology

1. 2005: G8 IP Group – Japan Proposal
2. Informal discussions
3. October 2007: Launch / Ministerial announcement
4. June 3- 4, 2008: First Round of Formal Negotiations, Geneva
5. July 29- 31, 2008: Second Round of Formal Negotiations, Washington
6. October 8-10, 2008: Third Round of Formal Negotiations, Tokyo
7. December 15-18 2008: Fourth Round of Formal Negotiations, Paris
8. May – Fifth Round of Formal Negotiations;

What ACTA is about

• Protecting expertise, innovation, quality and creativity
• Enhancing international cooperation
• Developing effective international standards
• Strengthening enforcement practices
• Addressing large-scale activities
• Respecting fundamental rights, freedoms and civil liberties
• Consistency with international obligations

What ACTA is NOT About

• Seizing portable music players and laptops at the border
• Extending the term of protection for copyright
• Preventing “parallel” imports
• Filtering internet traffic for infringing copyright works
• Limiting access to generic pharmaceuticals
• Reducing the court’s involvement in determining infringement
• Weakening privacy laws
• Lower evidentiary standards for injunctions
• Freezing bank accounts of suspected infringers

ACTA: State of Play in Negotiations

Six Chapters

1. Initial Provisions and Definitions
2. Legal Framework for Enforcement of Intellectual Property Rights
3. International Cooperation
4. Enforcement Practices
5. Institutional Arrangements
6. Final Provisions

1. Initial Provisions and Definitions

• No draft proposal yet
• Will include usual cross-cutting issues:
  –Preamble
  –Objective
  –Scope
  –Definitions

2. Legal Framework For Enforcement of Intellectual Property Rights

• Section 1: Civil Enforcement
• Section 2: Border Measures
• Section 3: Criminal Enforcement
• Section 4: Intellectual Property Rights Enforcement in the Digital Environment

Section 1 - Civil Enforcement

• Scope
• Definition of adequate damages
• Determination of amount of damages
• Injunctions requiring party to desist
• Destruction of infringing goods
• Provisional measures
• Reimbursement of legal fees and costs

Section 2 - border measures

• Scope
• De minimis exception
• Procedures for suspension of release of suspected goods
• Ex officio action for customs officials
• Security/assurance
• Disclosure of information
• Forfeiture/destruction/release of counterfeit goods
• Liability for storage and destruction fees

Section 3 - Criminal Enforcement

• Scope of enforcement
• Deterrent penalties
• Circumstances for Ex officio action
• Authority to order search/seizure
• Authority for judicial authorities to order forfeiture and destruction
• Authority of judicial authorities to order the forfeiture of assets
• Camcording
• Trafficking in counterfeit labels

Section 4 – Intellectual Property Rights Enforcement in the Digital Environment

• No draft proposal yet
• To date : Information gathering on different legal regimes in place; exploring common understanding
• Need to find the right balance

3. International Cooperation

• Cooperation among the competent authorities
• Consistency with privacy/data protection
• Sharing of information among competent authorities
• Exchange of statistical data and information on best practices
• Capacity building and technical assistance

4. Enforcement Practices

• Fostering of expertise
• Collection and analysis of data and other relevant information
• Internal coordination, including public/private advisory groups
• Measures to better identify and target suspected shipments
• Publication of information on procedures
• Public awareness and outreach

5. Institutional Arrangements

• Options for Secretariat/Oversight Committee
• Transparency
• Consultations among Parties

6. Final Provisions

Basic functioning of the agreement – accessions, amendments, etc.

Transparency

• Canada’s position is for greater transparency
• Discussions ongoing among the partners on how and when to make text public
• Currently, draft text is not complete; some parts have still not been drafted
• Document outlining key elements under discussion

Public Consultations

• Multi-faceted approach
  –Ongoing web-based consultation
  –Informal stakeholder consultations
  –Provinces and territories

Next Steps

• Negotiations still at an early stage
  – progress expected in 2009
• Next meeting planned for mid-May in Morocco
• Ongoing public consultations

Contact

Intellectual Property, Information and Technology Trade Policy Division (TMI)
125, Sussex Drive
Ottawa, ON
Email: acta-acrc@international.gc.ca