International, European and US Perspectives on the Negotiation and Adoption of the Anti-Counterfeiting Trade Agreement (ACTA)

Abstract

The negotiation and conclusion of the Anti-Counterfeiting Trade Agreement (hereafter, ACTA) has generated fierce controversy and political protest around the globe. Its main aim is the improvement of the domestic enforcement of intellectual property (IP) rights. This paper analyzes in detail the secretive negotiation process and controversial substantive features of ACTA that have led to global political resistance. It considers the legal issues that the treaty brings to the key signatories, both substantively and procedurally: the EU and the US, thereby considering international, supranational and domestic negotiation and ratification legal questions. This includes an examination of the changes that ACTA brings to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), whether ACTA complies with the existing EU legislation on copyright appropriately (Union acquis) and questions surrounding the constitutionality of ACTA under US Constitutional law. We argue that the danger of ACTA lies less in the actual substantive changes that it may bring to the enforcement of IP rights than in the precedent that it sets for the adoption of controversial and restrictive regulation in secretive and exclusive international procedures.

Keywords: ACTA, international agreements, EU law, US Constitution, transparency, IP rights, TRIPS, Union acquis