Amend ACTA: Due process in border measures

Sean Flynn
September 14, 2010

AMENDMENT

In Section 2, Border Measures, ADD the following subsection:

Art. 2.X Due Process

(1) Upon commencing any investigation of a complaint of willful counterfeiting or commercial scale copyright piracy, the competent authority shall publish notice thereof in a public register commonly used for such notices. Actual notice shall be given to the importer where such entity can be identified.

(2) During the course of each investigation under this section, the competent authority shall consult with, and seek advice and information from, the relevant departments of state with jurisdiction over matters involving health, law enforcement, consumer protection and such other departments and agencies as it considers appropriate.

(3) Whenever, in the course of an investigation under this section, the competent authority has reason to believe that the matter before it does not involve a matter involving willful counterfeiting or commercial scale copyright piracy, the competent authority shall terminate, or not institute, any investigation into the matter.

(4) The competent authority shall determine with respect to each investigation conducted by it, whether or not there is a violation of applicable laws against counterfeiting and commercial scale copyright piracy. [In in-transit or export cases, the competent authority shall apply the law of the country of importation.] The competent authority may, by issuing a consent order or on the basis of an agreement between the private parties to the investigation, including an agreement to present the matter for arbitration, terminate any such investigation, in whole or in part, without making such a determination.

(5) Each determination shall be made on the record after notice and opportunity for a hearing. All legal and equitable defenses may be presented in all cases. A respondent may raise any counterclaim in a manner prescribed by the competent authority.

(6) Any person adversely affected by a final determination of the competent authority shall have a right to appeal such determination, within 60 days after the determination becomes final, to a court or independent administrative body as determined by the party.

 

JUSTIFICATION

The current ACTA text shows inadequate concern for the due process rights of those alleged to be in contravention of counterfeiting or copyright piracy laws.

These provisions are modeled on the due process provisions of 19 U.S.C. Sec. 1337, which U.S. border officials use to authorize the seizure of goods suspected of being counterfeit. 

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