Anti-Counterfeiting Trade Agreement

Abstract

The evidence for there being a significant problem in counterfeit trademarks or unauthorised copies is weak. The OECD estimates that less than 2% of global trade is affected. In Australia only 0.01% of imports are seized counterfeit goods. Some of our major trading parties strongly object to these matters being handled outside the normal forums (the WTO and WIPO). ACTA is very poorly drafted, with a wide range of expansionary, ambit and unclear terms. Despite the objective being to deal with counterfeit trademarks and unauthorised copyright use, the treaty constantly refers to “intellectual property”. Further there is frequent use of the expansionary term “at least”. The treaty also uses inappropriate language, adopting the pejorative term “pirate” instead of the more appropriate “unauthorised”. At a minimum the treaty needs to be redrafted to use clear, precise and unloaded language. A wide range of remedies are already available (the NIA says nothing will change in Australia as a result of this treaty). ACTA proposes even further “remedies” including potential destruction of property owned by third parties, who may be entirely ignorant of the use of the property to produce infringing goods. At least one of these proposed forms of compensation is economic nonsense. There is no evidence in the NIA or in the OECD study on which the NIA draws that full consideration has been given to the very different nature of the various markets involved. Without such an understanding remedies can easily be disproportionate. Innocent parties may be affected by ACTA. At one “consultation” representatives of shippers and freight forwarders raised significant and legitimate concerns about additional costs that would be imposed on them. A full cost benefit analysis is needed identifying all the parties affected, whether they will benefit or lose, and whether they are domestic or overseas parties. Full consideration should also be given to consumer interests. These factors add to a bottom line where there is no clear and significant net economic gain to Australia. Indeed the ACTA treaty appears to be a sledgehammer in search of a very small nut. It does not meet basic drafting standards. ACTA therefore contravenes the principles of the current government’s trade policy.