New Book: ACTA And The Plurilateral Enforcement Agenda: Genesis And Aftermath

The new book, “The ACTA and the Plurilateral Enforcement Agenda,” offers an insightful read on the highly debated Anti-Counterfeiting Trade Agreement (ACTA), an effort to raise intellectual property protection that was met with opposition by many countries and was subject to intense scrutiny from non-state actors, including industry, civil society and academics.

The book was edited by Pedro Roffe, senior associate, International Centre for Trade and Sustainable Development, and Xavier Seuba, senior research associate and lecturer, Centre d’Études Internationales de la Propriété Intellectuelle, University of Strasbourg.

The volume examines the origins of the agreement, the process leading to its conclusion, and its implications for law-making in the field of enforcement of intellectual property rights.

The book aims to provide the most comprehensive study of the agreement and its relation to ongoing initiatives to improve enforcement of intellectual property rights to date.

ACTA is a plurilateral agreement aimed at establishing international standards on IP rights enforcement and combating the “proliferation of counterfeit and pirated goods,” as stated in its preamble. The agreement also would establish the ACTA Committee, an administrative body overseeing and managing the ACTA framework.

Discussions on the agreement began in 2007. Formal negotiations were launched in June 2008 and finalised in November 2010. The negotiating parties included Australia, Canada, the European Union and its 27 member states, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States. To enter into force, ratification by six signatories is needed. In July 2012, the EU Parliament voted not to ratify the agreement. At the same time, the Mexican Senate also rejected ACTA.

A large and diverse array of experts, including academics, policymakers and civil society actors representing different perspectives and approaches to enforcement issues, contributed to this publication. They offered a wide-ranging and detailed look into aspects of ACTA and its negotiation.

The book opens with a conceptual introduction to the plurilateral enforcement agenda followed by twenty-six contributions organised in five parts. These discuss: the main features and contents of the final text of ACTA, domestic challenges faced by different countries concerning the implementation of the agreement, impact on other intellectual property negotiations, views from a range of stakeholders, and how the agreement’s evolution can inform future IP negotiations and trade negotiations in general.

The main criticisms of ACTA were the lack of transparency and secrecy surrounding the ACTA negotiations, which “generated an understandable suspicion among governments and economic actors excluded from the discussion, as well as members of civil society at large,” the book says.

It is suggested that while ACTA’s future as a meaningful international treaty is uncertain – many authors, in fact, consider it a “failed agreement”, the ACTA’s final text and its negotiations provide “valuable lessons for the design and negotiations of plurilateral trade agreements.”

As one of the commentators observed, the failure of the agreement was not due to the developing countries opposition or drafters’ inability to reach an agreement, but “because of public opposition to the process and substance of the proposed treaty in developed countries.”

According to the authors, ACTA represents a helpful example to reflect on the principles that guide the negotiations of plurilateral agreements and as well as how such agreements should relate to the multilateral framework, in particular the World Trade Organization and World Intellectual Property Organization.

In this regard, it is advocated that due to their relation to fundamental rights, intellectual property negotiations “should be approached from the broad perspective of public policy rather than that of traditional trade negotiations.”

The book concludes by offering some key components for the successful completion of plurilateral and regional trade agreements. ACTA’s negotiating process has shown that “ensuring transparency, undertaking consultations with a broader range of stakeholders, relying on sound and impartial evidence and clarifying the relationship with existing multilateral rules” are essential in such a process, it suggests.

“What is unique in the book is its participatory and inclusive nature involving a wide variety of stakeholders,” Roffe told Intellectual Property Watch. “We brought together a diversity of voices on enforcement issues that today occupy a central space in international economic debates, as witnessed in the ACTA process and presently in mega-regional trade negotiations such as the Trans-Pacific Partnership (TPP).”

“As noted in our Introduction, ‘accurate identification of ACTA’s gaps and problems may be a good point of departure for better and more balanced enforcement legislation’,” Roffe added.

The ACTA and Plurilateral Enforcement Agenda: Genesis and Aftermath, Roffe & X. Seuba (eds.), is available from Cambridge University Press here.

Elena Bourtchouladze (LLB, DEA) holds a PhD degree in Public International Law from the Graduate Institute (Geneva) with focus on the WTO TRIPS Agreement and WIPO Conventions. She is a researcher at IP-Watch, and has experience in regulatory and litigation at a multinational company and an international organisation.