Rethinking the Anti-Counterfeiting Trade Agreement's Criminal Copyright Enforcement Measures

By Bitton, Miriam | Journal of Criminal Law and Criminology, Winter 2012 | Go to article overview

Rethinking the Anti-Counterfeiting Trade Agreement's Criminal Copyright Enforcement Measures


Bitton, Miriam, Journal of Criminal Law and Criminology


I. INTRODUCTION

The enforcement of intellectual property law is a continuing, evergrowing, and challenging task for countries around the world. In response to the challenges faced, enforcement issues have arisen at both the national and international levels. International agreements have been introduced over the years in order to advance minimum international standards that will assist national governments, inter alia, in combating widespread infringement.

As part of this "war" against intellectual property infringement, criminal sanctions have gained in prevalence. Despite the efforts made, it is indisputable that counterfeiting rates have continuously grown in recent years, thereby suggesting that the criminal enforcement systems in place have not significantly deterred or affected people's behavior in this field. Counterfeiting today is a $600 billion industry worldwide and accounts for 5%-7% of global trade. (1) It is estimated that in the United States alone, counterfeiting accounts for over $200 billion annually. (2) In the last two decades, counterfeiting has increased by more than 10,000%. (3)

As exemplified by the statistics, counterfeiting in today's globalized environment is a global problem that can only be combated on an international scale. In response to this need for anti-counterfeiting enforcement, a group of developed countries collaborated to negotiate and form the Anti-Counterfeiting Trade Agreement (ACTA), (4) an initiative to increase enforcement of intellectual property rights and combat counterfeiting beyond the existing enforcement provisions of the TradeRelated Aspects of Intellectual Property Rights Agreement (TRIPS). (5)

Through the ACTA, the United States, Japan, Switzerland, and the European Communities have initiated a move towards heightened intellectual property rights enforcement. (6) These nations officially announced their intention to start negotiations for the ACTA in 2007. (7) Much of the negotiations were conducted in a shroud of complete secrecy, (8) Yet criticism of the secretive negotiations diminished when the negotiating parties released a draft of the proposed agreement in April 2010 and a final draft in October of the same year. (9) The agreement was ultimately finalized in May 2011. (10)

The ACTA represents the strongest intellectual property enforcement agreement to date negotiated at the international level. The goals of the ACTA include: "(1) strengthening international cooperation, (2) improving enforcement practices, and (3) providing a strong legal framework for [intellectual property rights] enforcement." (11) It does so by bringing about the following changes to TRIPS's existing policies and goals:

   (1) [E]xpansive coverage of multiple kinds of IP and changes to the
   international definitions used in the WTO Agreement on Trade Related
   Aspects of Intellectual Property Law (TRIPS Agreement); (2) the
   expansion of what constitutes criminal copyright violations; (3) more
   stringent border measures; (4) mandating closer cooperation between
   governments and rights holders ... ; and (5) the creation of a new
   international institution (an ACTA "Committee") to address IP
   enforcement. (12)

This Article explores the ACTA's criminal provisions pertaining to copyright law. The ACTA, described as a TRIPS-plus agreement, includes several provisions concerning the criminal enforcement of copyright law that have never before been included in an international agreement. Most notably, the ACTA calls for strong penalties on the books: "[E]ach Party shall provide penalties that include imprisonment as well as monetary fines) sufficiently high to provide a deterrent to future acts of infringement .... " (13) The tougher penalties apply to several acts of intellectual property infringement. Under the criminal enforcement provision, criminal sanctions apply to willful trademark counterfeiting, copyright piracy, or "willful importation and domestic use" of counterfeit labels and packaging in the course of trade on a commercial scale. …

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