Anti-Counterfeiting Trade Agreement (ACTA)

Signed by 31 countries, the ACTA seeks to set out new standards of IP enforcement for the signatories.

THE PARTIES TO THIS AGREEMENT,

NOTING that effective enforcement of intellectual property rights is critical to sustaining economic

growth across all industries and globally;

NOTING further that the proliferation of counterfeit and pirated goods, as well as of services that

distribute infringing material, undermines legitimate trade and sustainable development of the world

economy, causes significant financial losses for right holders and for legitimate businesses, and, in

some cases, provides a source of revenue for organized crime and otherwise poses risks to

the public;

DESIRING TO combat such proliferation through enhanced international cooperation and more

effective international enforcement;

INTENDING TO provide effective and appropriate means, complementing the TRIPS Agreement,

for the enforcement of intellectual property rights, taking into account differences in their respective

legal systems and practices;

DESIRING TO ensure that measures and procedures to enforce intellectual property rights do not

themselves become barriers to legitimate trade;

DESIRING TO address the problem of infringement of intellectual property rights, including

infringement taking place in the digital environment, in particular with respect to copyright or

related rights, in a manner that balances the rights and interests of the relevant right holders, service

providers, and users;

ACTA/en 3

DESIRING TO promote cooperation between service providers and right holders to address

relevant infringements in the digital environment;

DESIRING that this Agreement operates in a manner mutually supportive of international

enforcement work and cooperation conducted within relevant international organizations;

RECOGNIZING the principles set forth in the Doha Declaration on the TRIPS Agreement and

Public Health, adopted on 14 November 2001, at the Fourth WTO Ministerial Conference;

HEREBY AGREE AS FOLLOWS:

ACTA/en 4

CHAPTER I

INITIAL PROVISIONS AND GENERAL DEFINITIONS

SECTION 1

INITIAL PROVISIONS

ARTICLE 1

Relation to Other Agreements

Nothing in this Agreement shall derogate from any obligation of a Party with respect to any other

Party under existing agreements, including the TRIPS Agreement.

ACTA/en 5

ARTICLE 2

Nature and Scope of Obligations

1. Each Party shall give effect to the provisions of this Agreement. A Party may implement in its

law more extensive enforcement of intellectual property rights than is required by this Agreement,

provided that such enforcement does not contravene the provisions of this Agreement. Each Party

shall be free to determine the appropriate method of implementing the provisions of this Agreement

within its own legal system and practice.

2. Nothing in this Agreement creates any obligation with respect to the distribution of resources

as between enforcement of intellectual property rights and enforcement of law in general.

3. The objectives and principles set forth in Part I of the TRIPS Agreement, in particular in

Articles 7 and 8, shall apply, mutatis mutandis, to this Agreement.

ARTICLE 3

Relation to Standards concerning the Availability and Scope of Intellectual Property Rights

1. This Agreement shall be without prejudice to provisions in a Party's law governing the

availability, acquisition, scope, and maintenance of intellectual property rights.

ACTA/en 6

2. This Agreement does not create any obligation on a Party to apply measures where a right in

intellectual property is not protected under its laws and regulations.

ARTICLE 4

Privacy and Disclosure of Information

1. Nothing in this Agreement shall require a Party to disclose:

(a) information, the disclosure of which would be contrary to its law, including laws protecting

privacy rights, or international agreements to which it is party;

(b) confidential information, the disclosure of which would impede law enforcement or otherwise

be contrary to the public interest; or

(c) confidential information, the disclosure of which would prejudice the legitimate commercial

interests of particular enterprises, public or private.

2. When a Party provides written information pursuant to the provisions of this Agreement, the

Party receiving the information shall, subject to its law and practice, refrain from disclosing or

using the information for a purpose other than that for which the information was provided, except

with the prior consent of the Party providing the information.

ACTA/en 7

SECTION 2

GENERAL DEFINITIONS

ARTICLE 5

General Definitions

For the purposes of this Agreement, unless otherwise specified:

(a) ACTA means the Anti-Counterfeiting Trade Agreement;

(b) Committee means the ACTA Committee established under Chapter V

(Institutional Arrangements);

(c) competent authorities includes the appropriate judicial, administrative, or law enforcement

authorities under a Party's law;

(d) counterfeit trademark goods means any goods, including packaging, bearing without

authorization a trademark which is identical to the trademark validly registered in respect of

such goods, or which cannot be distinguished in its essential aspects from such a trademark,

and which thereby infringes the rights of the owner of the trademark in question under the law

of the country in which the procedures set forth in Chapter II (Legal Framework for

Enforcement of Intellectual Property Rights) are invoked;

ACTA/en 8

(e) country is to be understood to have the same meaning as that set forth in the

Explanatory Notes to the WTO Agreement;

(f) customs transit means the customs procedure under which goods are transported under

customs control from one customs office to another;

(g) days means calendar days;

(h) intellectual property refers to all categories of intellectual property that are the subject of

Sections 1 through 7 of Part II of the TRIPS Agreement;

(i) in-transit goods means goods under customs transit or transhipment;

(j) person means a natural person or a legal person;

(k) pirated copyright goods means any goods which are copies made without the consent of the

right holder or person duly authorized by the right holder in the country of production and

which are made directly or indirectly from an article where the making of that copy would

have constituted an infringement of a copyright or a related right under the law of the country

in which the procedures set forth in Chapter II (Legal Framework for Enforcement of

Intellectual Property Rights) are invoked;

ACTA/en 9

(l) right holder includes a federation or an association having the legal standing to assert rights in

intellectual property;

(m) territory, for the purposes of Section 3 (Border Measures) of Chapter II (Legal Framework for

Enforcement of Intellectual Property Rights), means the customs territory and all free zones

1


of a Party;

(n) transhipment means the customs procedure under which goods are transferred under customs

control from the importing means of transport to the exporting means of transport within the

area of one customs office which is the office of both importation and exportation;

(o) TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property

Rights, contained in Annex 1C to the WTO Agreement;

(p) WTO means the World Trade Organization; and

(q) WTO Agreement means the Marrakesh Agreement Establishing the World Trade

Organization, done on 15 April 1994.

1

For greater certainty, the Parties acknowledge that free zone means a part of the territory of a

Party where any goods introduced are generally regarded, insofar as import duties and taxes

are concerned, as being outside the customs territory.

ACTA/en 10

CHAPTER II

LEGAL FRAMEWORK FOR ENFORCEMENT

OF INTELLECTUAL PROPERTY RIGHTS

SECTION 1

GENERAL OBLIGATIONS

ARTICLE 6

General Obligations with Respect to Enforcement

1. Each Party shall ensure that enforcement procedures are available under its law so as to

permit effective action against any act of infringement of intellectual property rights covered by this

Agreement, including expeditious remedies to prevent infringements and remedies which constitute

a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid

the creation of barriers to legitimate trade and to provide for safeguards against their abuse.

ACTA/en 11

2. Procedures adopted, maintained, or applied to implement the provisions of this Chapter shall

be fair and equitable, and shall provide for the rights of all participants subject to such procedures to

be appropriately protected. These procedures shall not be unnecessarily complicated or costly, or

entail unreasonable time-limits or unwarranted delays.

3. In implementing the provisions of this Chapter, each Party shall take into account the need for

proportionality between the seriousness of the infringement, the interests of third parties, and the

applicable measures, remedies and penalties.

4. No provision of this Chapter shall be construed to require a Party to make its officials subject

to liability for acts undertaken in the performance of their official duties.

SECTION 2

CIVIL ENFORCEMENT

1


ARTICLE 7

Availability of Civil Procedures

1. Each Party shall make available to right holders civil judicial procedures concerning the

enforcement of any intellectual property right as specified in this Section.

1

A Party may exclude patents and protection of undisclosed information from the scope of

this Section.

ACTA/en 12

2. To the extent that any civil remedy can be ordered as a result of administrative procedures on

the merits of a case, each Party shall provide that such procedures shall conform to principles

equivalent in substance to those set forth in this Section.

ARTICLE 8

Injunctions

1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of

intellectual property rights, its judicial authorities have the authority to issue an order against a party

to desist from an infringement, and inter alia, an order to that party or, where appropriate, to a third

party over whom the relevant judicial authority exercises jurisdiction, to prevent goods that involve

the infringement of an intellectual property right from entering into the channels of commerce.

2. Notwithstanding the other provisions of this Section, a Party may limit the remedies available

against use by governments, or by third parties authorized by a government, without the

authorization of the right holder, to the payment of remuneration, provided that the Party complies

with the provisions of Part II of the TRIPS Agreement specifically addressing such use. In other

cases, the remedies under this Section shall apply or, where these remedies are inconsistent with a

Party's law, declaratory judgments and adequate compensation shall be available.

ACTA/en 13

ARTICLE 9

Damages

1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of

intellectual property rights, its judicial authorities have the authority to order the infringer who,

knowingly or with reasonable grounds to know, engaged in infringing activity to pay the right

holder damages adequate to compensate for the injury the right holder has suffered as a result of the

infringement. In determining the amount of damages for infringement of intellectual property rights,

a Party's judicial authorities shall have the authority to consider, inter alia, any legitimate measure

of value the right holder submits, which may include lost profits, the value of the infringed goods or

services measured by the market price, or the suggested retail price.

2. At least in cases of copyright or related rights infringement and trademark counterfeiting,

each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority

to order the infringer to pay the right holder the infringer's profits that are attributable to the

infringement. A Party may presume those profits to be the amount of damages referred to in

paragraph 1.

ACTA/en 14

3. At least with respect to infringement of copyright or related rights protecting works,

phonograms, and performances, and in cases of trademark counterfeiting, each Party shall also

establish or maintain a system that provides for one or more of the following:

(a) pre-established damages; or

(b) presumptions

1 for determining the amount of damages sufficient to compensate the right

holder for the harm caused by the infringement; or

(c) at least for copyright, additional damages.

4. Where a Party provides the remedy referred to in subparagraph 3(a) or the presumptions

referred to in subparagraph 3(b), it shall ensure that either its judicial authorities or the right holder

has the right to choose such a remedy or presumptions as an alternative to the remedies referred to

in paragraphs 1 and 2.

5. Each Party shall provide that its judicial authorities, where appropriate, have the authority to

order, at the conclusion of civil judicial proceedings concerning infringement of at least copyright

or related rights, or trademarks, that the prevailing party be awarded payment by the losing party of

court costs or fees and appropriate attorney's fees, or any other expenses as provided for under that

Party's law.

1

The presumptions referred to in subparagraph 3(b) may include a presumption that the amount

of damages is: (i) the quantity of the goods infringing the right holder's intellectual property

right in question and actually assigned to third persons, multiplied by the amount of profit per

unit of goods which would have been sold by the right holder if there had not been the act of

infringement; or (ii) a reasonable royalty; or (iii) a lump sum on the basis of elements such as

at least the amount of royalties or fees which would have been due if the infringer had

requested authorization to use the intellectual property right in question.

ACTA/en 15

ARTICLE 10

Other Remedies

1. At least with respect to pirated copyright goods and counterfeit trademark goods, each Party

shall provide that, in civil judicial proceedings, at the right holder's request, its judicial authorities

have the authority to order that such infringing goods be destroyed, except in exceptional

circumstances, without compensation of any sort.

2. Each Party shall further provide that its judicial authorities have the authority to order that

materials and implements, the predominant use of which has been in the manufacture or creation of

such infringing goods, be, without undue delay and without compensation of any sort, destroyed or

disposed of outside the channels of commerce in such a manner as to minimize the risks of

further infringements.

3. A Party may provide for the remedies described in this Article to be carried out at the

infringer's expense.

ACTA/en 16

ARTICLE 11

Information Related to Infringement

Without prejudice to its law governing privilege, the protection of confidentiality of information

sources, or the processing of personal data, each Party shall provide that, in civil judicial

proceedings concerning the enforcement of intellectual property rights, its judicial authorities have

the authority, upon a justified request of the right holder, to order the infringer or, in the alternative,

the alleged infringer, to provide to the right holder or to the judicial authorities, at least for the

purpose of collecting evidence, relevant information as provided for in its applicable laws and

regulations that the infringer or alleged infringer possesses or controls. Such information may

include information regarding any person involved in any aspect of the infringement or alleged

infringement and regarding the means of production or the channels of distribution of the infringing

or allegedly infringing goods or services, including the identification of third persons alleged to be

involved in the production and distribution of such goods or services and of their channels

of distribution.

ACTA/en 17

ARTICLE 12

Provisional Measures

1. Each Party shall provide that its judicial authorities have the authority to order prompt and

effective provisional measures:

(a) against a party or, where appropriate, a third party over whom the relevant judicial authority

exercises jurisdiction, to prevent an infringement of any intellectual property right from

occurring, and in particular, to prevent goods that involve the infringement of an intellectual

property right from entering into the channels of commerce;

(b) to preserve relevant evidence in regard to the alleged infringement.

2. Each Party shall provide that its judicial authorities have the authority to adopt provisional

measures inaudita altera parte where appropriate, in particular where any delay is likely to cause

irreparable harm to the right holder, or where there is a demonstrable risk of evidence being

destroyed. In proceedings conducted inaudita altera parte, each Party shall provide its judicial

authorities with the authority to act expeditiously on requests for provisional measures and to make

a decision without undue delay.

ACTA/en 18

3. At least in cases of copyright or related rights infringement and trademark counterfeiting,

each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority

to order the seizure or other taking into custody of suspect goods, and of materials and implements

relevant to the act of infringement, and, at least for trademark counterfeiting, documentary

evidence, either originals or copies thereof, relevant to the infringement.

4. Each Party shall provide that its authorities have the authority to require the applicant, with

respect to provisional measures, to provide any reasonably available evidence in order to satisfy

themselves with a sufficient degree of certainty that the applicant's right is being infringed or that

such infringement is imminent, and to order the applicant to provide a security or equivalent

assurance sufficient to protect the defendant and to prevent abuse. Such security or equivalent

assurance shall not unreasonably deter recourse to procedures for such provisional measures.

5. Where the provisional measures are revoked or where they lapse due to any act or omission

by the applicant, or where it is subsequently found that there has been no infringement of an

intellectual property right, the judicial authorities shall have the authority to order the applicant,

upon request of the defendant, to provide the defendant appropriate compensation for any injury

caused by these measures.

ACTA/en 19

SECTION 3

BORDER MEASURES

1, 2


ARTICLE 13

Scope of the Border Measures

3


In providing, as appropriate, and consistent with its domestic system of intellectual property rights

protection and without prejudice to the requirements of the TRIPS Agreement, for effective border

enforcement of intellectual property rights, a Party should do so in a manner that does not

discriminate unjustifiably between intellectual property rights and that avoids the creation of

barriers to legitimate trade.

1

Where a Party has dismantled substantially all controls over movement of goods across its

border with another Party with which it forms part of a customs union, it shall not be required

to apply the provisions of this Section at that border.

2

It is understood that there shall be no obligation to apply the procedures set forth in this

Section to goods put on the market in another country by or with the consent of the

right holder.

3

The Parties agree that patents and protection of undisclosed information do not fall within the

scope of this Section.

ACTA/en 20

ARTICLE 14

Small Consignments and Personal Luggage

1. Each Party shall include in the application of this Section goods of a commercial nature sent

in small consignments.

2. A Party may exclude from the application of this Section small quantities of goods of a

non-commercial nature contained in travellers' personal luggage.

ARTICLE 15

Provision of Information from the Right Holder

Each Party shall permit its competent authorities to request a right holder to supply relevant

information to assist the competent authorities in taking the border measures referred to in this

Section. A Party may also allow a right holder to supply relevant information to its

competent authorities.

ACTA/en 21

ARTICLE 16

Border measures

1. Each Party shall adopt or maintain procedures with respect to import and export shipments

under which:

(a) its customs authorities may act upon their own initiative to suspend the release of suspect

goods; and

(b) where appropriate, a right holder may request its competent authorities to suspend the release

of suspect goods.

2. A Party may adopt or maintain procedures with respect to suspect in-transit goods or in other

situations where the goods are under customs control under which:

(a) its customs authorities may act upon their own initiative to suspend the release of, or to

detain, suspect goods; and

(b) where appropriate, a right holder may request its competent authorities to suspend the release

of, or to detain, suspect goods.

ACTA/en 22

ARTICLE 17

Application by the Right Holder

1. Each Party shall provide that its competent authorities require a right holder that requests the

procedures described in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures) to provide

adequate evidence to satisfy the competent authorities that, under the law of the Party providing the

procedures, there is prima facie an infringement of the right holder's intellectual property right, and

to supply sufficient information that may reasonably be expected to be within the right holder's

knowledge to make the suspect goods reasonably recognizable by the competent authorities. The

requirement to provide sufficient information shall not unreasonably deter recourse to the

procedures described in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures).

2. Each Party shall provide for applications to suspend the release of, or to detain, any suspect

goods

1 under customs control in its territory. A Party may provide for such applications to apply to

multiple shipments. A Party may provide that, at the request of the right holder, the application to

suspend the release of, or to detain, suspect goods may apply to selected points of entry and exit

under customs control.

3. Each Party shall ensure that its competent authorities inform the applicant within a reasonable

period whether they have accepted the application. Where its competent authorities have accepted

the application, they shall also inform the applicant of the period of validity of the application.

1

The requirement to provide for such applications is subject to the obligations to provide

procedures referred to in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures).

ACTA/en 23

4. A Party may provide that, where the applicant has abused the procedures described in

subparagraphs 1(b) and 2(b) of Article 16 (Border Measures), or where there is due cause, its

competent authorities have the authority to deny, suspend, or void an application.

ARTICLE 18

Security or Equivalent Assurance

Each Party shall provide that its competent authorities have the authority to require a right holder

that requests the procedures described in subparagraphs 1(b) and 2(b) of Article 16 (Border

Measures) to provide a reasonable security or equivalent assurance sufficient to protect the

defendant and the competent authorities and to prevent abuse. Each Party shall provide that such

security or equivalent assurance shall not unreasonably deter recourse to these procedures. A Party

may provide that such security may be in the form of a bond conditioned to hold the defendant

harmless from any loss or damage resulting from any suspension of the release of, or detention of,

the goods in the event the competent authorities determine that the goods are not infringing. A Party

may, only in exceptional circumstances or pursuant to a judicial order, permit the defendant to

obtain possession of suspect goods by posting a bond or other security.

ACTA/en 24

ARTICLE 19

Determination as to Infringement

Each Party shall adopt or maintain procedures by which its competent authorities may determine,

within a reasonable period after the initiation of the procedures described in Article 16 (Border

Measures), whether the suspect goods infringe an intellectual property right.

ARTICLE 20

Remedies

1. Each Party shall provide that its competent authorities have the authority to order the

destruction of goods following a determination referred to in Article 19 (Determination as to

Infringement) that the goods are infringing. In cases where such goods are not destroyed, each Party

shall ensure that, except in exceptional circumstances, such goods are disposed of outside the

channels of commerce in such a manner as to avoid any harm to the right holder.

2. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully

affixed shall not be sufficient, other than in exceptional cases, to permit release of the goods into the

channels of commerce.

3. A Party may provide that its competent authorities have the authority to impose administrative

penalties following a determination referred to in Article 19 (Determination as to Infringement) that

the goods are infringing.

ACTA/en 25

ARTICLE 21

Fees

Each Party shall provide that any application fee, storage fee, or destruction fee to be assessed by its

competent authorities in connection with the procedures described in this Section shall not be used

to unreasonably deter recourse to these procedures.

ARTICLE 22

Disclosure of Information

Without prejudice to a Party's laws pertaining to the privacy or confidentiality of information:

(a) a Party may authorize its competent authorities to provide a right holder with information

about specific shipments of goods, including the description and quantity of the goods, to

assist in the detection of infringing goods;

ACTA/en 26

(b) a Party may authorize its competent authorities to provide a right holder with information

about goods, including, but not limited to, the description and quantity of the goods, the name

and address of the consignor, importer, exporter, or consignee, and, if known, the country of

origin of the goods, and the name and address of the manufacturer of the goods, to assist in

the determination referred to in Article 19 (Determination as to Infringement);

(c) unless a Party has provided its competent authorities with the authority described in

subparagraph (b), at least in cases of imported goods, where its competent authorities have

seized suspect goods or, in the alternative, made a determination referred to in Article 19

(Determination as to Infringement) that the goods are infringing, the Party shall authorize its

competent authorities to provide a right holder, within thirty days

1 of the seizure or

determination, with information about such goods, including, but not limited to, the

description and quantity of the goods, the name and address of the consignor, importer,

exporter, or consignee, and, if known, the country of origin of the goods, and the name and

address of the manufacturer of the goods.

1

For the purposes of this Article, days means business days.

ACTA/en 27

SECTION 4

CRIMINAL ENFORCEMENT

ARTICLE 23

Criminal Offences

1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases

of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale

1. For

the purposes of this Section, acts carried out on a commercial scale include at least those carried out

as commercial activities for direct or indirect economic or commercial advantage.

2. Each Party shall provide for criminal procedures and penalties to be applied in cases of wilful

importation

2 and domestic use, in the course of trade and on a commercial scale, of labels

or packaging

3:

(a) to which a mark has been applied without authorization which is identical to, or cannot be

distinguished from, a trademark registered in its territory; and

1

Each Party shall treat wilful importation or exportation of counterfeit trademark goods or

pirated copyright goods on a commercial scale as unlawful activities subject to criminal

penalties under this Article. A Party may comply with its obligation relating to importation

and exportation of counterfeit trademark goods or pirated copyright goods by providing for

distribution, sale or offer for sale of such goods on a commercial scale as unlawful activities

subject to criminal penalties.

2

A Party may comply with its obligation relating to importation of labels or packaging through

its measures concerning distribution.

3

A Party may comply with its obligations under this paragraph by providing for criminal

procedures and penalties to be applied to attempts to commit a trademark offence.

ACTA/en 28

(b) which are intended to be used in the course of trade on goods or in relation to services which

are identical to goods or services for which such trademark is registered.

3. A Party may provide criminal procedures and penalties in appropriate cases for the

unauthorized copying of cinematographic works from a performance in a motion picture exhibition

facility generally open to the public.

4. With respect to the offences specified in this Article for which a Party provides criminal

procedures and penalties, that Party shall ensure that criminal liability for aiding and abetting is

available under its law.

5. Each Party shall adopt such measures as may be necessary, consistent with its legal principles,

to establish the liability, which may be criminal, of legal persons for the offences specified in this

Article for which the Party provides criminal procedures and penalties. Such liability shall be

without prejudice to the criminal liability of the natural persons who have committed the

criminal offences.

ACTA/en 29

ARTICLE 24

Penalties

For offences specified in paragraphs 1, 2, and 4 of Article 23 (Criminal Offences), each Party shall

provide penalties that include imprisonment as well as monetary fines

1 sufficiently high to provide a

deterrent to future acts of infringement, consistently with the level of penalties applied for crimes of

a corresponding gravity.

ARTICLE 25

Seizure, Forfeiture, and Destruction

1. With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal

Offences) for which a Party provides criminal procedures and penalties, that Party shall provide that

its competent authorities have the authority to order the seizure of suspected counterfeit trademark

goods or pirated copyright goods, any related materials and implements used in the commission of

the alleged offence, documentary evidence relevant to the alleged offence, and the assets derived

from, or obtained directly or indirectly through, the alleged infringing activity.

2. Where a Party requires the identification of items subject to seizure as a prerequisite for

issuing an order referred to in paragraph 1, that Party shall not require the items to be described in

greater detail than necessary to identify them for the purpose of seizure.

1

It is understood that there is no obligation for a Party to provide for the possibility of

imprisonment and monetary fines to be imposed in parallel.

ACTA/en 30

3. With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal

Offences) for which a Party provides criminal procedures and penalties, that Party shall provide that

its competent authorities have the authority to order the forfeiture or destruction of all counterfeit

trademark goods or pirated copyright goods. In cases where counterfeit trademark goods and pirated

copyright goods are not destroyed, the competent authorities shall ensure that, except in exceptional

circumstances, such goods shall be disposed of outside the channels of commerce in such a manner

as to avoid causing any harm to the right holder. Each Party shall ensure that the forfeiture or

destruction of such goods shall occur without compensation of any sort to the infringer.

4. With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal

Offences) for which a Party provides criminal procedures and penalties, that Party shall provide that

its competent authorities have the authority to order the forfeiture or destruction of materials and

implements predominantly used in the creation of counterfeit trademark goods or pirated copyright

goods and, at least for serious offences, of the assets derived from, or obtained directly or indirectly

through, the infringing activity. Each Party shall ensure that the forfeiture or destruction of such

materials, implements, or assets shall occur without compensation of any sort to the infringer.

5. With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal

Offences) for which a Party provides criminal procedures and penalties, that Party may provide that

its judicial authorities have the authority to order:

(a) the seizure of assets the value of which corresponds to that of the assets derived from, or

obtained directly or indirectly through, the allegedly infringing activity; and

ACTA/en 31

(b) the forfeiture of assets the value of which corresponds to that of the assets derived from, or

obtained directly or indirectly through, the infringing activity.

ARTICLE 26

Ex Officio Criminal Enforcement

Each Party shall provide that, in appropriate cases, its competent authorities may act upon their own

initiative to initiate investigation or legal action with respect to the criminal offences specified in

paragraphs 1, 2, 3, and 4 of Article 23 (Criminal Offences) for which that Party provides criminal

procedures and penalties.

ACTA/en 32

SECTION 5

ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

IN THE DIGITAL ENVIRONMENT

ARTICLE 27

Enforcement in the Digital Environment

1. Each Party shall ensure that enforcement procedures, to the extent set forth in Sections 2

(Civil Enforcement) and 4 (Criminal Enforcement), are available under its law so as to permit

effective action against an act of infringement of intellectual property rights which takes place in

the digital environment, including expeditious remedies to prevent infringement and remedies

which constitute a deterrent to further infringements.

2. Further to paragraph 1, each Party's enforcement procedures shall apply to infringement of

copyright or related rights over digital networks, which may include the unlawful use of means of

widespread distribution for infringing purposes. These procedures shall be implemented in a

manner that avoids the creation of barriers to legitimate activity, including electronic commerce,

and, consistent with that Party's law, preserves fundamental principles such as freedom of

expression, fair process, and privacy

1.


1

For instance, without prejudice to a Party's law, adopting or maintaining a regime providing

for limitations on the liability of, or on the remedies available against, online service

providers while preserving the legitimate interests of right holder.

ACTA/en 33

3. Each Party shall endeavour to promote cooperative efforts within the business community to

effectively address trademark and copyright or related rights infringement while preserving

legitimate competition and, consistent with that Party's law, preserving fundamental principles such

as freedom of expression, fair process, and privacy.

4. A Party may provide, in accordance with its laws and regulations, its competent authorities

with the authority to order an online service provider to disclose expeditiously to a right holder

information sufficient to identify a subscriber whose account was allegedly used for infringement,

where that right holder has filed a legally sufficient claim of trademark or copyright or related rights

infringement, and where such information is being sought for the purpose of protecting or enforcing

those rights. These procedures shall be implemented in a manner that avoids the creation of barriers

to legitimate activity, including electronic commerce, and, consistent with that Party's law,

preserves fundamental principles such as freedom of expression, fair process, and privacy.

5. Each Party shall provide adequate legal protection and effective legal remedies against the

circumvention of effective technological measures

1 that are used by authors, performers or

producers of phonograms in connection with the exercise of their rights in, and that restrict acts in

respect of, their works, performances, and phonograms, which are not authorized by the authors, the

performers or the producers of phonograms concerned or permitted by law.

1

For the purposes of this Article, technological measures means any technology, device, or

component that, in the normal course of its operation, is designed to prevent or restrict acts, in

respect of works, performances, or phonograms, which are not authorized by authors,

performers or producers of phonograms, as provided for by a Party's law. Without prejudice

to the scope of copyright or related rights contained in a Party's law, technological measures

shall be deemed effective where the use of protected works, performances, or phonograms is

controlled by authors, performers or producers of phonograms through the application of a

relevant access control or protection process, such as encryption or scrambling, or a copy

control mechanism, which achieves the objective of protection.

ACTA/en 34

6. In order to provide the adequate legal protection and effective legal remedies referred to in

paragraph 5, each Party shall provide protection at least against:

(a) to the extent provided by its law:

(i) the unauthorized circumvention of an effective technological measure carried out

knowingly or with reasonable grounds to know; and

(ii) the offering to the public by marketing of a device or product, including computer

programs, or a service, as a means of circumventing an effective technological

measure; and

(b) the manufacture, importation, or distribution of a device or product, including computer

programs, or provision of a service that:

(i) is primarily designed or produced for the purpose of circumventing an effective

technological measure; or

(ii) has only a limited commercially significant purpose other than circumventing an

effective technological measure

1.


1

In implementing paragraphs 5 and 6, no Party shall be obligated to require that the design of,

or the design and selection of parts and components for, a consumer electronics,

telecommunications, or computing product provide for a response to any particular

technological measure, so long as the product does not otherwise contravene its measures

implementing these paragraphs.

ACTA/en 35

7. To protect electronic rights management information

1, each Party shall provide adequate legal

protection and effective legal remedies against any person knowingly performing without authority

any of the following acts knowing, or with respect to civil remedies, having reasonable grounds to

know, that it will induce, enable, facilitate, or conceal an infringement of any copyright or

related rights:

(a) to remove or alter any electronic rights management information;

(b) to distribute, import for distribution, broadcast, communicate, or make available to the public

copies of works, performances, or phonograms, knowing that electronic rights management

information has been removed or altered without authority.

8. In providing adequate legal protection and effective legal remedies pursuant to the provisions

of paragraphs 5 and 7, a Party may adopt or maintain appropriate limitations or exceptions to

measures implementing the provisions of paragraphs 5, 6, and 7. The obligations set forth in

paragraphs 5, 6, and 7 are without prejudice to the rights, limitations, exceptions, or defences to

copyright or related rights infringement under a Party's law.

1

For the purposes of this Article, rights management information means:

(a) information that identifies the work, the performance, or the phonogram; the author of

the work, the performer of the performance, or the producer of the phonogram; or the

owner of any right in the work, performance, or phonogram;

(b) information about the terms and conditions of use of the work, performance, or

phonogram; or

(c) any numbers or codes that represent the information described in (a) and (b) above;

when any of these items of information is attached to a copy of a work, performance, or

phonogram, or appears in connection with the communication or making available of a

work, performance, or phonogram to the public.

ACTA/en 36

CHAPTER III

ENFORCEMENT PRACTICES

ARTICLE 28

Enforcement Expertise, Information, and Domestic Coordination

1. Each Party shall encourage the development of specialized expertise within its competent

authorities responsible for the enforcement of intellectual property rights.

2. Each Party shall promote the collection and analysis of statistical data and other relevant

information concerning intellectual property rights infringements as well as the collection of

information on best practices to prevent and combat infringements.

3. Each Party shall, as appropriate, promote internal coordination among, and facilitate joint

actions by, its competent authorities responsible for the enforcement of intellectual property rights.

4. Each Party shall endeavour to promote, where appropriate, the establishment and maintenance

of formal or informal mechanisms, such as advisory groups, whereby its competent authorities may

receive the views of right holders and other relevant stakeholders.

ACTA/en 37

ARTICLE 29

Management of Risk at Border

1. In order to enhance the effectiveness of border enforcement of intellectual property rights, the

competent authorities of a Party may:

(a) consult with the relevant stakeholders, and the competent authorities of other Parties

responsible for the enforcement of intellectual property rights to identify and address

significant risks, and promote actions to mitigate those risks; and

(b) share information with the competent authorities of other Parties on border enforcement of

intellectual property rights, including relevant information to better identify and target for

inspection shipments suspected of containing infringing goods.

2. Where a Party seizes imported goods infringing an intellectual property right, its competent

authorities may provide the Party of export with information necessary for identification of the

parties and goods involved in the exportation of the seized goods. The competent authorities of the

Party of export may take action against those parties and future shipments in accordance with that

Party's law.

ACTA/en 38

ARTICLE 30

Transparency

To promote transparency in the administration of its intellectual property rights enforcement

system, each Party shall take appropriate measures, pursuant to its law and policies, to publish or

otherwise make available to the public information on:

(a) procedures available under its law for enforcing intellectual property rights, its competent

authorities responsible for such enforcement, and contact points available for assistance;

(b) relevant laws, regulations, final judicial decisions, and administrative rulings of general

application pertaining to the enforcement of intellectual property rights; and

(c) its efforts to ensure an effective system of enforcement and protection of intellectual

property rights.

ARTICLE 31

Public Awareness

Each Party shall, as appropriate, promote the adoption of measures to enhance public awareness of

the importance of respecting intellectual property rights and the detrimental effects of intellectual

property rights infringement.

ACTA/en 39

ARTICLE 32

Environmental Considerations in Destruction of Infringing Goods

The destruction of goods infringing intellectual property rights shall be done consistently with the

laws and regulations on environmental matters of the Party in which the destruction takes place.

CHAPTER IV

INTERNATIONAL COOPERATION

ARTICLE 33

International Cooperation

1. Each Party recognizes that international cooperation is vital to realizing effective protection of

intellectual property rights and that it should be encouraged regardless of the origin of the goods

infringing intellectual property rights, or the location or nationality of the right holder.

ACTA/en 40

2. In order to combat intellectual property rights infringement, in particular trademark

counterfeiting and copyright or related rights piracy, the Parties shall promote cooperation, where

appropriate, among their competent authorities responsible for the enforcement of intellectual

property rights. Such cooperation may include law enforcement cooperation with respect to

criminal enforcement and border measures covered by this Agreement.

3. Cooperation under this Chapter shall be conducted consistent with relevant international

agreements, and subject to the laws, policies, resource allocation, and law enforcement priorities of

each Party.

ARTICLE 34

Information Sharing

Without prejudice to the provisions of Article 29 (Management of Risk at Border), each Party shall

endeavour to exchange with other Parties:

(a) information the Party collects under the provisions of Chapter III (Enforcement Practices),

including statistical data and information on best practices;

(b) information on its legislative and regulatory measures related to the protection and

enforcement of intellectual property rights; and

(c) other information as appropriate and mutually agreed.

ACTA/en 41

ARTICLE 35

Capacity Building and Technical Assistance

1. Each Party shall endeavour to provide, upon request and on mutually agreed terms and

conditions, assistance in capacity building and technical assistance in improving the enforcement of

intellectual property rights to other Parties to this Agreement and, where appropriate, to prospective

Parties. The capacity building and technical assistance may cover such areas as:

(a) enhancement of public awareness on intellectual property rights;

(b) development and implementation of national legislation related to the enforcement of

intellectual property rights;

(c) training of officials on the enforcement of intellectual property rights; and

(d) coordinated operations conducted at the regional and multilateral levels.

2. Each Party shall endeavour to work closely with other Parties and, where appropriate,

non-Parties to this Agreement for the purpose of implementing the provisions of paragraph 1.

ACTA/en 42

3. A Party may undertake the activities described in this Article in conjunction with relevant

private sector or international organizations. Each Party shall strive to avoid unnecessary

duplication between the activities described in this Article and other international

cooperation activities.

CHAPTER V

INSTITUTIONAL ARRANGEMENTS

ARTICLE 36

The ACTA Committee

1. The Parties hereby establish the ACTA Committee. Each Party shall be represented on

the Committee.

2. The Committee shall:

(a) review the implementation and operation of this Agreement;

(b) consider matters concerning the development of this Agreement;

(c) consider any proposed amendments to this Agreement in accordance with

Article 42 (Amendments);

ACTA/en 43

(d) decide, in accordance with paragraph 2 of Article 43 (Accession), upon the terms of accession

to this Agreement of any Member of the WTO; and

(e) consider any other matter that may affect the implementation and operation of

this Agreement.

3. The Committee may decide to:

(a) establish ad hoc committees or working groups to assist the Committee in carrying out its

responsibilities under paragraph 2, or to assist a prospective Party upon its request in acceding

to this Agreement in accordance with Article 43 (Accession);

(b) seek the advice of non-governmental persons or groups;

(c) make recommendations regarding the implementation and operation of this Agreement,

including by endorsing best practice guidelines related thereto;

(d) share information and best practices with third parties on reducing intellectual property rights

infringements, including techniques for identifying and monitoring piracy and

counterfeiting; and

(e) take other actions in the exercise of its functions.

ACTA/en 44

4. All decisions of the Committee shall be taken by consensus, except as the Committee may

otherwise decide by consensus. The Committee shall be deemed to have acted by consensus on a

matter submitted for its consideration, if no Party present at the meeting when the decision is taken

formally objects to the proposed decision. English shall be the working language of the Committee

and the documents supporting its work shall be in the English language.

5. The Committee shall adopt its rules and procedures within a reasonable period after the entry

into force of this Agreement, and shall invite those Signatories not Parties to this Agreement to

participate in the Committee's deliberations on those rules and procedures. The rules

and procedures:

(a) shall address such matters as chairing and hosting meetings, and the performance of

organizational duties relevant to this Agreement and its operation; and

(b) may also address such matters as granting observer status, and any other matter the

Committee decides necessary for its proper operation.

6. The Committee may amend the rules and procedures.

7. Notwithstanding the provisions of paragraph 4, during the first five years following the entry

into force of this Agreement, the Committee's decisions to adopt or amend the rules and procedures

shall be taken by consensus of the Parties and those Signatories not Parties to this Agreement.

ACTA/en 45

8. After the period specified in paragraph 7, the Committee may adopt or amend the rules and

procedures upon the consensus of the Parties to this Agreement.

9. Notwithstanding the provisions of paragraph 8, the Committee may decide that the adoption

or amendment of a particular rule or procedure requires the consensus of the Parties and those

Signatories not Parties to this Agreement.

10. The Committee shall convene at least once every year unless the Committee decides

otherwise. The first meeting of the Committee shall be held within a reasonable period after the

entry into force of this Agreement.

11. For greater certainty, the Committee shall not oversee or supervise domestic or international

enforcement or criminal investigations of specific intellectual property cases.

12. The Committee shall strive to avoid unnecessary duplication between its activities and other

international efforts regarding the enforcement of intellectual property rights.

ACTA/en 46

ARTICLE 37

Contact Points

1. Each Party shall designate a contact point to facilitate communications between the Parties on

any matter covered by this Agreement.

2. On the request of another Party, a Party's contact point shall identify an appropriate office or

official to whom the requesting Party's inquiry may be addressed, and assist, as necessary, in

facilitating communications between the office or official concerned and the requesting Party.

ARTICLE 38

Consultations

1. A Party may request in writing consultations with another Party with respect to any matter

affecting the implementation of this Agreement. The requested Party shall accord sympathetic

consideration to such a request, provide a response, and afford adequate opportunity to consult.

ACTA/en 47

2. The consultations, including particular positions taken by consulting Parties, shall be kept

confidential and be without prejudice to the rights or positions of either Party in any other

proceeding, including a proceeding under the auspices of the Understanding on Rules and

Procedures Governing the Settlement of Disputes contained in Annex 2 to the WTO Agreement.

3. The consulting Parties may, by mutual consent, notify the Committee of the result of their

consultations under this Article.

ACTA/en 48

CHAPTER VI

FINAL PROVISIONS

ARTICLE 39

Signature

This Agreement shall remain open for signature by participants in its negotiation,

1 and by any other

WTO Members the participants may agree to by consensus, from 1 May 2011 until 1 May 2013.

1

Australia, the Republic of Austria, the Kingdom of Belgium, the Republic of Bulgaria,

Canada, the Republic of Cyprus, the Czech Republic, the Kingdom of Denmark, the Republic

of Estonia, the European Union, the Republic of Finland, the French Republic, the Federal

Republic of Germany, the Hellenic Republic, the Republic of Hungary, Ireland, the Italian

Republic, Japan, the Republic of Korea, the Republic of Latvia, the Republic of Lithuania,

the Grand Duchy of Luxembourg, the Republic of Malta, the United Mexican States, the

Kingdom of Morocco, the Kingdom of the Netherlands, New Zealand, the Republic of

Poland, the Portuguese Republic, Romania, the Republic of Singapore, the Slovak Republic,

the Republic of Slovenia, the Kingdom of Spain, the Kingdom of Sweden, the Swiss

Confederation, the United Kingdom of Great Britain and Northern Ireland, and the

United States of America.

ACTA/en 49

ARTICLE 40

Entry Into Force

1. This Agreement shall enter into force thirty days after the date of deposit of the sixth

instrument of ratification, acceptance, or approval as between those Signatories that have deposited

their respective instruments of ratification, acceptance, or approval.

2. This Agreement shall enter into force for each Signatory that deposits its instrument of

ratification, acceptance, or approval after the deposit of the sixth instrument of ratification,

acceptance, or approval, thirty days after the date of deposit by such Signatory of its instrument of

ratification, acceptance, or approval.

ARTICLE 41

Withdrawal

A Party may withdraw from this Agreement by means of a written notification to the Depositary.

The withdrawal shall take effect 180 days after the Depositary receives the notification.

ACTA/en 50

ARTICLE 42

Amendments

1. A Party may propose amendments to this Agreement to the Committee. The Committee shall

decide whether to present a proposed amendment to the Parties for ratification, acceptance,

or approval.

2. Any amendment shall enter into force ninety days after the date that all the Parties have

deposited their respective instruments of ratification, acceptance, or approval with the Depositary.

ARTICLE 43

Accession

1. After the expiration of the period provided in Article 39 (Signature), any Member of the WTO

may apply to accede to this Agreement.

2. The Committee shall decide upon the terms of accession for each applicant.

3. This Agreement shall enter into force for the applicant thirty days after the date of deposit of

its instrument of accession based upon the terms of accession referred to in paragraph 2.

ACTA/en 51

ARTICLE 44

Texts of the Agreement

This Agreement shall be signed in a single original in the English, French, and Spanish languages,

each version being equally authentic.

ARTICLE 45

Depositary

The Government of Japan shall be the Depositary of this Agreement.