The Anti-Counterfeiting Trade Agreement: Regime-Shifting and the Global Effects of Intellectual Property Enforcement

Abstract

The Anti-Counterfeiting Trade Agreement (ACTA) is an international plurilateral agreement focused on increasing levels of intellectual property (IP) enforcement, to combat the global rise in IP infringement. This paper will address a number of issues surrounding ACTA, its content and the manner of its negotiation. It will attempt to determine whether ACTA represents an attempt to institute a global normative shift in the law of IP enforcement to benefit developed nations and holders of IP rights, or instead whether it is simply a legitimate response to growing IP infringement worldwide, in the vein of TRIPS-Plus FTAs and bilateral agreements. It will also argue that ACTA has the potential to upset the balance of the global IP framework in terms of TRIPS flexibility, regardless of whether it actually constitutes a total shift in the enforcement norm. There are two components to ACTA which will be analysed and critiqued; its process (meaning the exclusive manner of its negotiation) and its content. In terms of content, there are four aspects of the enforcement provisions this paper will address. These relate to criminal liability, civil liability, border measures and digital enforcement mechanisms. These provisions will be analysed in light of current national and international approaches. This paper aims to highlight some of the issues relating to these enforcement provisions. Such issues include their potential to alter international norms, affect trade, health and domestic policy and curtail civil liberties. After discussing the enforcement provisions, this paper will then address the concept of regime-shifting, outlining the current international regime and attempting to determine whether ACTA is intended to alter or replace it. Finally, it will assess the effect that ACTA may have globally and question its legitimacy in light of TRIPS and its stated goals.