ACTA Signed by Eight Nations – USTR States that ACTA is Consistent with US Law and Doesn’t Need Congressional Approval

On October 2, the Anticounterfeiting Trade Agreement was signed by Australia, Canada, Japan, Korea, Morocco, New Zealand, Singapore, and the United States.  The signing statement issued at the ceremony called the agreement “a significant achievement in the fight against the infringement of intellectual property rights, in particular the proliferation of counterfeiting and piracy on a global scale, providing a mechanism for the parties to work together in a more collaborative manner to achieve the common goal of effective IPR enforcement.” 

The U.S. Trade Representative released a “fact sheet” answering certain criticisms of the agreement from civil society.  Regarding ACTA’s compatibility with US law:

Significantly, the ACTA is consistent with existing U.S. law, and does not require any change to U.S. law for its implementation in the United States. In particular, the ACTA is consistent with U.S. copyright, patent, and trademark laws. For example, the application of injunctive relief as provided for in the Digital Millennium Copyright Act (17 USC §512j) and other provisions of U.S. law is consistent with and implements the obligations of the ACTA. References in Article 27.4 of the ACTA to expeditious disclosure of information do not oblige the United States to take additional action to compel such disclosure. Disclosure requirements currently apply in the United States only with respect to copyrights (under certain provisions of the DMCA) and not to trademarks. Similarly, U.S. law regarding damages in patent disputes fully implements the relevant provisions of the ACTA. In some cases, the ACTA provides that a party may decide whether or not to implement certain provisions, or provides that a party may, in implementing certain provisions, limit the scope of its implementation to particular categories of intellectual property. For example, the ACTA specifies that a party may exclude patents and protection of undisclosed information from the obligations in Chapter II, Section 2 (Civil Enforcement). The United States will ensure that its approach to implementing these and all other ACTA obligations is fully consistent with U.S. law.

Regarding the need (or lack thereof) of Congressional approval:

As noted, the ACTA is consistent with existing U.S. law and does not require the enactment of implementing legislation. The United States may therefore enter into and carry out the requirements of the Agreement under existing legal authority, just as it has done with other trade agreements. Such agreements include both broad trade pacts like the 1947 General Agreement on Tariffs and Trade, and agreements specifically addressing trade-related intellectual property rights, including those concluded with Ecuador, Hungary, Jamaica, and Latvia.

USTR Documents

Civil Society Responses to USTR Fact Sheet

Author

  • Mike Palmedo

    Mike Palmedo is the admin for infojustice.org, and he manages interdisciplinary research on copyright exceptions at American University College of Law's Program on Information Justice and Intellectual Property. He has Masters degrees Economics and in International Affairs, and is an economics PhD candidate.

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