ACTA: What Does The Final Text Mean? What, If Anything, Could Change?”

I have posed a question following the news that the latest round of negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) have been completed with the Australian Government’s Department of Foreign Affairs and Trade publishing the final text.

ACTA negotiations began in June 2008, based on a concept introduced by Japan when it hosted the 2006 G8 Summit. Since that time there have been 11 rounds of talks. The agreement aims to establish a comprehensive, international framework that will assist in the fight against intellectual property infringements.

What is this voluntary trade agreement worth in real terms and does it actually add anything new to the international intellectual property enforcement framework? The answer has to be ‘not a lot’ unless it acts as a springboard for UK statutory damages following the example of the US?

The key text is at ARTICLE 2.2: DAMAGES:

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 sufficient to
compensate the right holder for the harm caused by the infringement, or

(c) at least for copyright, additional damages.

Pre-established damages would help against infringements where the court only awards the missing licence fee. It is a change to the law that we really need. It would provide deterrence against infringers without needing to revert to the criminal law for deterrence alone which has its own complications with the raised burden of proof being number one.

Intellectual Property Rights are a key asset of the UK economy and the broader European Union. It is vital these are protected so that we may compete with confidence as a knowledge economy. On the positive side it does however provide a standard for enforcement plus an international forum in which the improvement of standards can be pursued. We do need to be clear however, that ACTA will not change the existing body of UK and EU law as this is already more advanced than many of the existing international standards. The effort should not be wasted.

Since the Gowers Review in 2006, we have been arguing for a deterrent to infringers, ACTA should be the inspiration on statutory damages in the new IP Review recently announced by the Prime Minister. The ACTA agreement currently extends to all 27 EU countries, as well as Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States of America.

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John Lovelock has been with the Federation Against Software Theft since December 2002, having run his own business and several others at Managing Director and General Manager levels for twelve years in the UK after many years in business in South Africa. He was Chairman of the Alliance Against Intellectual Property Theft’s Digital Group for several years until, at his recommendation, it was taken back into the main body of the Alliance. The Digital Group included the music, film, games, software, publishing and copyright licensing industry sectors, and was responsible for lobbying Government on law changes to protect their members rights, as well as education and profile of the digital content industry within the employer organisations such as the CBI and FSB (Federation of Small Businesses) as well as the Institute of Directors (IoD). From his knowledge gained in the IT Sector and legal issues surrounding IT Compliance, Software Asset Management (SAM) and Software Licence Management (SLM) within The Federation, coupled with a vast experience in commercial businesses, John offers a down-to-earth, entertaining, succinct blend to presentations.