Relations between the TRIPS Agreement and the Anti-Counterfeiting Trade Agreement: A Plurilateral Instrument Having Multilateral Functions with Little Multilateral Process
| DOI | 10.1177/001573251204800105 |
| Published date | 01 February 2013 |
| Date | 01 February 2013 |
| Subject Matter | Articles |
Relations between the
TRIPS Agreement and
the Anti-Counterfeiting
Trade Agreement:
A Plurilateral Instrument
Having Multilateral
Functions with Little
Multilateral Process
Chang-fa Lo
Abstract
The Anti-Counterfeiting Trade Agreement was negotiated among developed and
some more advanced developing countries to enhance the enforcement aspects
of intellectual property rights protection. The main purpose of it was to raise the
international standards of enforcement through establishing a plurilateral agree-
ment. The agreement has its multilateral functions partly because of the nature
of the agreement and partly because of the MFN obligations under the TRIPS
Agreement. For non-Parties, the intellectual property rights of their nationals
are to be protected by the agreement because of the MFN obligations under the
TRIPS Agreement. Although this is theoretically beneficial to non-Parties, they
are not to receive substantial benefits mainly because non-Parties are mostly not
the major origins of intellectual property right holders. However, the agreement
is to adversely affect the products or services coming from all WTO Members,
whether or not they are the Parties. Developing countries producing products
(such as generic drugs) and those in need of such products could be adversely
affected by such higher standards. Since the agreement has such multilateral func-
tions and since there is a lack of multilateral process in the enactment of this
plurilateral agreement, there is a need to cope with the problem. The paper
proposes some steps to be taken by the Parties to reduce the concerns of such
multilateral function so that it will be more compatible with multilateral sys-
tem. The steps include the establishment of regular consultation mechanism with
non-Parties, the publishing of information concerning the implementation of the
Article
Foreign Trade Review
48(1) 105–124
©2013 Indian Institute of
Foreign Trade
SAGE Publications
Los Angeles, London,
New Delhi, Singapore,
Washington DC
DOI: 10.1177/001573251204800105
http://ftr.sagepub.com
Chang-fa Lo is the Justice at the Constitutional Court, Taiwan, ROC; Professor, National
Taiwan University College of Law. Email: lohuang@ntu.edu.tw
Foreign Trade Review, 48, 1 (2013): 105–124
106 Chang-fa Lo
agreement to reflect whether there is a genuine manner of carrying out the
higher standards of enforcement and the proper terms to be drafted in favour
of developing country members of the WTO to attract more non-Parties to join
the agreement and to reduce the gap between the plurilateral agreement and the
multilateral system.
JEL: F53
Keywords
Anti-Counterfeiting Trade Agreement (ACTA), plurilateral agreement, TRIPS
Agreement, TRIPS-plus.
Introduction
The Anti-Counterfeiting Trade Agreement (the ACTA) is the newest intellectual
property treaty. It is not to deal with the substantive aspects of intellectual prop-
erty rights, but to enhance the effective enforcement of the rights at the domestic
level. It was negotiated from October 2007 among developed countries (Canada,
Australia, the European Union (EU) and its member countries, Japan, New
Zealand, Switzerland and the United States) and some more advanced developing
countries (including Korea, Mexico, Morocco, and Singapore).1
The negotiations were launched with the backgrounds that counterfeiting
activities were still perceived as prevalent, causing huge economic losses to these
countries (Blakeney, 2010); that current other agreements, including the Agreement
on Trade Related Aspects of Intellectual Property Rights (the TRIPS Agreement),
were considered not sufficient to cope with effective protection of intellectual
property rights; and that a more effective and comprehensive mechanism in
improving international cooperation, establishing best practices for the enforce-
ment of intellectual property rights and providing a more effective legal frame-
work, would enhance intellectual property right protection.2 The negotiations
were conducted outside the TRIPS Agreement mainly because of the composition
of the members to the World Trade Organization (the WTO). The majority of
WTO members are developing countries. Many of them already had difficulty in
implementing the TRIPS Agreement. It would be very unlikely for them to agree
on an even higher standard to be set forth in a new WTO agreement, like the
ACTA, for the enforcement of the TRIPS Agreement.
The negotiations were completed in April 2010. Eight participating countries
(including the United States, Australia, Canada, Korea, Japan, New Zealand,
Morocco and Singapore) signed the agreement in October 2011.3 The European
Union (EU) and its member countries as well as other negotiation countries also
signed the agreement in the earlier part of 2012.4 Mexico signed the agreement in
July 2012 despite that there was a recommendation from its Senate not to sing it.5
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