Do ACTA Member Countries Want to Confront China With A Fait Accompli?

Since April 9, when I blogged 'China and ACTA: Why the problem is not made part of the solution', new information about the Anti-Counterfeiting Trade Agreement (ACTA) has leaked, see Wikileaks here. It makes you realise how transparent the founding parties to ACTA want to be. Compare the United States Trade Representative posting a 6 page Summary, April 6, 2009 with the 48 page draft that leaked.

I know some lawyers who will be exuberant with the most conspicious provision of the ACTA draft you can find:

Section 3: Criminal Enforcment; article 2.14:

"Willful copyright or related rights piracy on a commercial scale includes:

a. significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and

b. willful copyright or related rights for purposed of commercial advantage or private gain."

Although a lot is in flux, these are some of the other interesting things in the draft:

- Higher damage awards;

- Mandated information from infringer;

- The right holder is not liable for payment of any storage or destruction;

- Right to block or detain goods at the border for up to one year.

By excluding countries such as the People's Republic of China, it seems that the ACTA members first want establish a high IPR enforcement standard, and make this standard the global standard. But this makes all the other fora less significant. As Professor Michael Geist put it: "there will be a concerted effort to transform a plurilateral agreement into a multilateral one, though only the original negotiating partners will have had input into the content of the treaty". Read Professor Geist's column for Intellectual Property Watch: 'The ACTA Threat To The Future Of WIPO'. Of course ACTA is not only threatening the World Intellectual Property Organization (WIPO), but also World Trade Organization (WTO)'s Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs). One of the advantages of WTO's TRIPs in comparison to WIPO treaties is that WTO has an effective dispute resolution mechanism. It will be interesting to see how the ACTA members will resolve disputes.