Amend ACTA: Destruction of Goods

James Love

September 16, 2010

Amendment

In Chapter Two, Section 2, Art. 2.11: Remedies, ADD the italicized text below:

1. Each Party shall provide its competent authorities with the authority to order the destruction of goods following a determination under Article 2.10 that the goods are infringing.17 In cases where such goods are not destroyed, each Party shall ensure such goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder, except in exceptional circumstances.

2. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases to permit the release of the goods into the channels of commerce.

3. Each party may provide its competent authorities with the authority to impose administrative penalties following a determination under Article 2.10 that the goods are infringing.

4.  The provisions of subsections 1-3 shall not apply if it contradicts with the domestic laws of a Party.

 

Justification

In Article 2.11, parties are required, without exception, to provide "competent authorities with the authority to order the destruction of goods" found to be infringing in Article 2.10. Or, where "such goods are not destroyed, each Party shall ensure such goods are disposed of outside the channels of commerce," except in "exceptional circumstances." If the scope of the board members extends to all intellectual property rights, this runs counter to Article 37 of the TRIPS, concerning semi-conductor designs. As regards copyrighted or trademarked goods, it violates a number of statutes in Finland, Italy, Sweden, Germany, Denmark and the United States.  The following are some examples of national exceptions to the remedy of destroying goods.

Denmark

(2) Instead of seizure or transfer, it may be ordered that the copies shall be destroyed in whole or in part or in any other manner be made unserviceable for unlawful use. If due to the artistic or financial value of the copies or if otherwise deemed reasonable in the circumstances, the courts may allow the copies to be made available to the public against damages and compensation to the infringed party.

(4) The provisions of subsections (1)-(3) shall not apply to persons who have acquired copies in good faith for private use, or to persons who have made copies in good faith in contravention of section 11 (3).

Finland

. . The provisions . . . shall not apply to a person who has acquired the property or some specific right therein in good faith, or to works of architecture;

Italy

Article 159
. .. The provisions for destruction and delivery shall not apply to infringing specimens or copies acquired in good faith for personal use.
Article 160
Removal or destruction shall not be demanded in the last year of the term for which the right endures . . .
Article 161
. . . Seizure may not be effected in the case of works resulting from the collaboration of two or more persons, except in particular serious cases or where the infringement is imputable to all joint authors. . . .
Article 169
Actions in defence of the rights relating to the authorship of a work shall give rise to removal or destruction only if the damage cannot be remedied by means of the addition or suppression of notices on the work which refer to its authorship or by other means of publicity.
Article 170
Actions in defence of the rights bearing relating to the integrity of a work shall give rise to removal or destruction of the deformed, mutilated or otherwise modified copy of the work only when it is not possible to restore such copy in its original form at the expense of the party wishing to avoid removal or destruction.

Sweden

The provisions of the first and second Paragraphs shall not apply in respect of persons who have in good faith acquired the property or a right in it,

United States

19 USC 1337 -
Exclusion of articles from entry
unless, after considering the effect of such exclusion upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers, it finds that such articles should not be excluded from entry.

Forfeiture
In addition to taking action under subsection (d) of this section, the Commission may issue an order providing that any article imported in violation of the provisions of this section be seized and forfeited to the United States . . .

Importation by or for United States
Any exclusion from entry or order under subsection (d), (e), (f), (g), or (i) of this section, in cases based on a proceeding involving a patent, copyright, mask work, or design under subsection (a)(1) of this section, shall not apply to any articles imported by and for the use of the United States, or imported for, and to be used for, the United States with the authorization or consent of the Government.

 

 

 

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