Amend ACTA: Injunctions Against Intermediaries

Amendment

In Chapter Two, Section 1, Article 2.X: Injunctions, DELETE the crossed out text below:

[EU/Sing: 1. ]In civil judicial proceedings concerning the enforcement of {Can/NZ/Aus/US/Sing/Mex; copyright or related rights and trademarks} {J/EU: intellectual property rights}, each Party shall provide that its judicial authorities shall have the authority [Can/AUS/Sing: subject to any statutory limitations under its domestic law] to issue an order to a party to desist from an infringement, including an order to prevent infringing goods from entering into the channels of commerce.

[EU/CH: 2. The Parties shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right8]

8[EU/CH: The conditions and procedures relating to such injunction will be left to each Party's legal system.]

 

Justification

Unlike the July 2010 text, the August 2010 text no longer contains the provisions on secondary liability for internet service providers over violations committed by third parties utilizing their services.  However, if Article 2.X.2 remains in the final text, secondary liability for internet service providers may still be enforceable.  Article 2.X.2 allows right holders to "apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right" and FN 8 notes that "the conditions and procedures relating to such injunction will be left to each Party's legal system".  Through broad languages and grant of discretion, this proposed language would allow a Party to issue an injunction against any "intermediaries whose services are used by a third party", including internet service providers.  In order to truly purge the Agreement of secondary liability for internet service providers, Article 2.X.2 must be deleted completely.

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