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

Currents, International Trade Law Journal (2012), vol. 20(2), pp. 20-44, Forthcoming

50 Pages Posted: 11 Sep 2012 Last revised: 18 Apr 2013

See all articles by Christina Eckes

Christina Eckes

Amsterdam Centre for European Law and Governance

Elaine Fahey

City, University of London - City Law School

Machiko Kanetake

Utrecht University

Date Written: September 11, 2012

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

Suggested Citation

Eckes, Christina and Fahey, Elaine and Kanetake, Machiko, International, European and US Perspectives on the Negotiation and Adoption of the Anti-Counterfeiting Trade Agreement (ACTA) (September 11, 2012). Currents, International Trade Law Journal (2012), vol. 20(2), pp. 20-44, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2145047

Christina Eckes (Contact Author)

Amsterdam Centre for European Law and Governance ( email )

Oudemanhuispoort 4-6
1012 CN Amsterdam
Netherlands

Elaine Fahey

City, University of London - City Law School ( email )

London, EC1V OHB
United Kingdom

Machiko Kanetake

Utrecht University ( email )

School of Law
Achter Sint Pieter 200
Utrecht, 3512 HT
Netherlands

HOME PAGE: http://nl.linkedin.com/in/machikokanetake

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