Amend ACTA: Use By, For, or Authorized By a Government

James Love
September 14, 2010

AMENDMENT

In Chapter Two, General Obligations, Art. 2.X.4, KEEP 

[US/Aus: Notwithstanding the other provisions of this [J:Chapter] [Agreement], the parties may limit the remedies available against a government's unauthorized use of intellectual property covered under this Agreement or against such unauthorized use by a third party that was authorized by a government, to payment of remuneration. The right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization.]
[NZ: Notwithstanding the other provisions of this Chapter in relation to civil remedies and criminal penalties, the Parties may:
(a) limit civil remedies available against a government's unauthorized use of intellectual property covered under this Agreement or against such unauthorized use by a third party that was authorized by a government to payment of remuneration. The right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization; and
(b) limit or exclude criminal penalties for such unauthorized use of intellectual property rights.]
[Can/US: In other cases, the remedies under this Chapter shall apply or, where those remedies are inconsistent with a Party's law, declaratory judgments and adequate compensation shall be available.]


Justification 

This is a very important part of the ACTA. In the current draft, the United States, NZ and Australia are moving to the TRIPS norms, which allow the flexibility to use limits on remedies for infringement to create liability rules in some areas. This is quite encouraging. There is zero evidence that statutory exceptions on injunctions or damages have contributed to counterfeiting, and many countries have some types of exception in their national laws, including of course the United States, which currently makes use of these flexibilities more than any other country.

The EU opposition to the proposals by the US, Canada and New Zealand are unfortunate, and are counter to legal traditions in several EU member states. The EU has yet to provide a public rationale for its opposition to the statutory exceptions to remedies that have been proposed in paragraph 4. 

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