ACTA PROVISIONS THAT INTEND TO SUBVERT

Art 1 TRIPS agreement provides that the members shall give effect to the provisions of this
Agreement. Members may, but shall not be obliged to, implement in their law more extensive
protection than is required by this Agreement, provided that such protection does not
contravene the provisions of this Agreement. Members shall be free to determine the
appropriate method of implementing the provisions of this Agreement within their own legal
system and practice.
It goes to show that the position to be taken up by the countries like India who are at the
suffering end due to ACTA have to take equitable arguments while opposing the harsher laws
of the ACTA rather than confronting developed countries on treaty provisions of TRIPS.
The right to conclude harsher punishments and bans within their national laws on intellectual
property violations is allowed justly under the TRIPS agreement itself.

Art 1 of ACTA sounds a clarion call for India as it holds the same for other similarly placed
nations like Brazil( hugely dependent on generic medicines for survival). The provision
provides that the members shall give effect to the provisions of this Agreement. A Party may
implement in its domestic law more extensive protection and enforcement of intellectual
property rights than is required by this Agreement, provided that such protection and
enforcement does not contravene the provisions of this Agreement. Members shall be free to
determine the appropriate method of implementing the provisions of this Agreement within
their own legal system and practice.

It is made apparently clear that the developed nations are not holding themselves back
anymore and are going all out on a crusade against the counterfeiters and the pirated goods,
which they feel already is long overdue. They have the backing of the powerful industry
(pharmaceutical big shots, Hollywood content creators and other similar professions) with
them, who many believe to be the actual driving force behind the ACTA. It cannot be
understated that these industry big wigs have been at the receiving end for a long time due to
loss of revenues due to ever so booming counterfeit market especially in Asian countries.

ACTA for the convenience sake has taken the definitions from the TRIPS agreement only but
has gone several miles ahead of the same treaty when it comes to the enforcement part of the
treaty regime.3

Chapter 2 of ACTA provides for Legal framework for enforcement of Intellectual Property
Rights
Article 2.X: General Obligations With Respect to enforcement
2. In respect of civil remedies and criminal penalties for enforcement of intellectual property
rights, each Party shall take into account the need for proportionality between the seriousness
of the infringement and the remedies or penalties ordered.
[3. Those measures, procedures and remedies shall also be [effective, proportionate][ fair and
equitable] and [deterrent]

It is made clear in no uncertain terms that the ACTA parties are willing to deal with
counterfeiting with iron hand. The „deterrent‟ measures are aimed at reclaiming the lost

3
ACTA, ARTICLE 1.X: Definitions intellectual property refers to all categories of intellectual property that
are the subject of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of Intellectual
Property Rights.
markets which the industry masters have lost to the counterfeiting and also to prevent
the any such loss in future.
ARTICLE 2.2: on DAMAGES gives that Each Party shall provide that:
(a) in civil judicial proceedings, its judicial authorities shall have the authority to
order the infringer [who knowingly or with reasonable grounds to know, engaged in
[infringing activity] of [copyright or related rights and trademarks] [intellectual
property rights] to pay the right holder
(i) damages adequate to compensate for the injury the right holder has suffered as a
result of the infringement; or
(ii) [at least in the case of copyright or related rights infringement and trademark
counterfeiting,] [in the case of IPR infringements] the profits of the infringer that are
attributable to the infringement, [which may be presumed to be the amount of
damages] [and that are not taken into account in computing the amount of damages]
[referred to in clause (i)] [which may be presumed to be the amount of damages
referred to in clause (i)]; and

(b) in determining the amount of damages for [copyright or related rights

infringement and trademark counterfeiting] [infringement of intellectual property
rights], its judicial authorities shall consider, inter alia, any legitimate measure of
value submitted by the right holder, which may include the lost profits, the value of
the infringed good or service, measured by the market price, the suggested retail
price, or [the profits of the infringer that are attributable to the infringement].

The above provision clearly places an overtly greater reliance on the testimony of the
right holders than that of the accused and takes them at their word in determining the
amount of compensation due the infringement.

Art2.2.2. At least with respect to works, phonograms, and performances protected by

copyright or related rights, and in [cases of trademark counterfeiting], in civil judicial
proceedings, [As an alternative to paragraph 1,] each Party [shall][may] establish or
maintain a system that provides:
(a) pre-established damages;
(b) Presumptions for determining the amount of damages sufficient to compensate
the right holder for the harm caused by the infringement. [; or
(c) Additional damages]
The above provision literally gives the free hand to the parties to the agreement to
decide the compensation that is to paid as an initial amount as damages in case of
infringement.