CONSOLIDATED TEXT REFLECTS CHANGES MADE DURING THE SEPTEMBER 2010 TOKYO ROUND
Anti-Counterfeiting Trade Agreement
Informal Predecisional/Deliberative Draft: 2 October 2010
This text reflects the outcome of the 11th and final round of the negotiations held in Tokyo. Some delegations expressed reservation on specific parts of text, which are highlighted in the text by underlines and italic letters.
The Parties to this Agreement,
Noting, that effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally;
Further Noting that the proliferation of counterfeit and pirated goods as well as the proliferation of services that distribute infringing material, undermines legitimate trade and the sustainable development of the world economy, causes significant financial losses for right holders and for legitimate businesses, and in some cases, provides a source of revenue for organized crime and otherwise poses risks to the public;
Desiring to combat such proliferation through enhanced international cooperation and through more effective international enforcement;
Intending to provide effective and appropriate means, complementing the TRIPS Agreement, for the enforcement of intellectual property rights, taking into account differences in their respective legal systems and practices;
Desiring to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;
Desiring to address the problem of infringement of intellectual property rights, including that which takes place in the digital environment, and with respect to copyright or related rights in particular in a manner that balances the rights and interests of the relevant right holders, service providers and users;
Desiring to promote cooperation between service providers and rights holders with respect to relevant infringements in the digital environment;
Desiring that ACTA operate in a manner mutually supportive of international enforcement work and cooperation conducted within relevant international organizations; and
Recognizing the principles set out in the Doha Declaration on the TRIPS Agreement and Public Health, adopted on November 14, 2001, by the WTO at the Fourth WTO Ministerial Conference, held in Doha, Qatar;
Agree as follows:
Nothing in this Agreement shall derogate from any obligation of a Party with respect to any other Party under existing agreements, including the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights.
For the purposes of this Agreement, unless otherwise specified:
Without prejudice to its domestic law that governs the protection of confidentiality of information sources, the processing of personal data, or privilege, each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority upon a justified request of the right holder, to order the infringer, or in the alternative, the alleged infringer to provide, at least for the purpose of collecting evidence, relevant information as provided in its applicable laws and regulations that the infringer or alleged infringer possesses or controls, to the right holder or to the judicial authorities. Such information may include information regarding any person or persons involved in any aspect of the infringement and regarding the means of production or distribution channel of such goods or services, including the identification of third persons involved in the production and distribution of the infringing goods or services or in their channels of distribution.
In providing, as appropriate, and consistent with a Party's domestic system of IPR protection and without prejudice to the requirements of the TRIPS Agreement, for effective border enforcement of intellectual property rights, a Party should do so in a manner that does not discriminate unreasonably between intellectual property rights and that avoids the creation of barriers to legitimate trade.
Each Party shall permit the competent authorities to request a right holder to supply relevant information to assist the competent authorities in taking border measures provided for under this Section. Each Party may also allow a right holder to supply relevant information to the competent authorities.
Each Party shall provide that its competent authorities shall have the authority to require a right holder requesting procedures described under Article 2.X.1.b and Article 2.X.2.b to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that such security or equivalent assurance shall not unreasonably deter recourse to these procedures. Each Party may provide that such security may be in the form of a bond conditioned to hold the defendant harmless from any loss or damage resulting from any suspension of the release of the goods in the event the competent authorities determine that the goods do not infringe. Only in exceptional circumstances or pursuant to a judicial order may a Party permit a defendant to post a bond or other security to obtain possession of suspect goods.
Each Party shall adopt or maintain a procedure by which their competent authorities may determine, within a reasonable period of time after the initiation of the procedures described under Article 2.X, whether the suspect goods infringe an intellectual property right.
Each Party shall provide that any application fee, storage fee, or destruction fee to be assessed by competent authorities in connection with procedures described in this Section shall not be used to unreasonably deter recourse to these procedures.
Without prejudice to a Party’s laws pertaining to the privacy or confidentiality of information:
For the offences specified in 2.14.1, 2.14.2, 2.14.3, and 2.14.4, each Party shall provide penalties that include imprisonment as well as monetary fines12) sufficiently high to provide a deterrent to future acts of infringement, consistently with the level of penalties applied for crimes of a corresponding gravity.
Each Party shall provide that, in appropriate cases, its competent authorities may act upon their own initiative to initiate investigation or legal action with respect to the criminal offences described in Article 2.14.
property rights to identify and address significant risks and promote actions to mitigate those risks;
relevant information to better identify and target shipments for inspection
For the purposes of promoting transparency in the administration of its intellectual property rights enforcement system, each Party shall take appropriate measures, pursuant to its domestic laws and policies, to publish or make available to the public information on:
Each Party shall, as appropriate, promote the adoption of measures to enhance public awareness of the importance of respecting intellectual property rights and the detrimental effects of intellectual property rights infringement.
The destruction of goods infringing intellectual property rights shall be done consistently with each Party’s laws and regulations on environmental matters.
Without prejudice to Articles 2.4 and 3.2, each Party shall endeavor to exchange with other Parties the following:
This Agreement shall remain open for signature by participants in its negotiation17) from [date] until [date] at the Depositary. Note: the dates will reflect a 2 year period.
A Party may withdraw from this Agreement by means of a written notification to the Depositary. Such withdrawal shall take effect 180 days after the notification is received by the Depositary.
This Agreement shall be signed in the English, French and Spanish languages, which shall be equally authentic.
Japan shall be the Depositary of this Agreement.