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October

# ACTA:  Meeting U.S. Objectives

The Anti-Counterfeiting Trade Agreement (“ACTA” or the “Agreement”) signed today meets the key U.S. objectives for the ACTA negotiations. In particular, a core U.S. objective was to create an agreement that fosters increased leadership in the international fight against counterfeiting and piracy. Today’s Agreement establishes that leadership. It brings together a significant group of trading partners, all of whom share an interest in effective enforcement of intellectual property rights (IPRs), in support of a strengthened international standard for IPR enforcement. The ACTA negotiating parties have expressed their hope that other trading partners will seek to join the Agreement.

In substance, today’s Agreement contains all of the elements that the parties believed at the outset of the ACTA negotiations should comprise its key components, namely: (1) enhanced international cooperation; (2) promotion of sound enforcement practices; and (3) a strengthened legal framework for IPR enforcement in the areas of criminal enforcement, enforcement at the border, civil and administrative actions, and distribution of copyrighted material on the Internet. The ACTA contains innovative provisions in the first two areas, deepening international cooperation and promoting sound enforcement practices. In the third area, consistent with the Administration’s strategy for intellectual property enforcement, the ACTA establishes a strengthened international framework building on the minimum standards of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This marks a considerable improvement in international trade norms for effectively combating the global proliferation of commercial-scale counterfeiting and piracy in the 21st Century. Together, these provisions will help to defend American jobs in innovative and creative industries against intellectual property theft.

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.

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.

The ACTA represents a significant achievement in the fight against 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.

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