In looking at the scope issues, it might be helpful to examine the 18 places where the August 25, 2010 version of the ACTA text uses the term, “at least.”
Page 7
ARTICLE 2.x: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT
2.X.2
Option 1: [Mex/US/J/NZ/Sing/CAN/Aus: 3. At least in respect of civil remedies and criminal penalties for enforcement of intellectual property rights, each Party shall take into account, as appropriate, the need for proportionality between the seriousness of the infringement, the interests of third parties and the applicable remedies or penalties.]
ARTICLE 2.x: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT
2.X.5
Option 1: [Mex/US/J/NZ/Sing/CAN/Aus: 3. At least in respect of civil remedies and criminal penalties for enforcement of intellectual property rights, each Party shall take into account, as appropriate, the need for proportionality between the seriousness of the infringement, the interests of third parties and the applicable remedies or penalties.]
Page 8-9
Article 2.2.2 Damages:
2. {At least} in cases {EU/CH: of intellectual property rights} {of copyright or related rights infringement and trademark counterfeiting}, each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer to pay the right holder the profits of the infringer that are attributable to the infringement. A Party’s legal system may presume the profits of the infringer to be the amount of damages referred to in paragraph 1.
Page 9
Article 2.2.3 Damages:
3. {US: At least with respect to works, phonograms, and performances protected by copyrights or related rights, and in cases of trademark counterfeiting, e} [E]ach Party shall also establish or maintain a system that provides for one or more of the following:
a) pre-established damages, or
b) presumptions for determining the amount of damages[9] sufficient to compensate the right holder for the harm caused by the infringement, or
c) at least for copyright, additional damages.
Page 10-11
ARTICLE 2.4: INFORMATION RELATED TO INFRINGEMENT
Without prejudice to its domestic law that governs the protection of confidentiality of information sources, the processing of personal data, or privilege, each Party shall provide that in civil judicial proceedings concerning the enforcement of {J/CH/EU: intellectual property rights}{Can/NZ/Aus/Sing/US/Mex: copyright or related rights and trademarks}, its judicial authorities shall have the authority upon a justified request of the right holder, to order the infringer, or in the alternative, the alleged infringer to provide, at least for the purpose of collecting evidence, relevant information as provided in its applicable laws and regulations that the infringer or alleged infringer possesses or controls, to the right holder or to the judicial authorities. Such information may include information regarding any person or persons involved in any aspect of the infringement and regarding the means of production or distribution channel of such goods or services, including the identification of third persons involved in the production and distribution of the infringing goods or services or in their channels of distribution.
3. {US/J/NZ/MX/Aus: In civil judicial proceedings concerning copyright or related rights infringement and trademark counterfeiting}[10], each Party shall provide that its judicial authorities shall have the authority to order the seizure or other taking into custody of suspected infringing goods, 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.
Page 11
Section 2: Border Measures
Article 2.X.2
{US/Aus/Sing/NZ/J/Can: Parties shall provide for the provisions related to border measures to be applied [US/Sing/J: at least] in cases of trademark counterfeiting and copyright piracy. [US/Sing/J: Parties may provide for such provisions to be applied in other cases of infringement of intellectual property rights]}
Page 15-16
ARTICLE 2.13: DISCLOSURE OF INFORMATION
Without prejudice to a Party’s laws pertaining to[18] the privacy or confidentiality of information:
a) each Party may authorize its competent authorities to provide right holders with information about specific shipments of goods, including the description and quantity, to assist in the detection of infringing goods;
b) each Party may authorize its competent authorities to provide right holders with information about goods including, but not limited to, the description
and quantity of the goods and the name and address of the consignor, importer, exporter or consignee, and, if known, the country of origin and name and address of the manufacturer of the goods to assist in the determination under Article 2.10 of whether goods infringe rights covered by this section;
c) unless a Party has granted authority under subparagraph (b), at least in the case of imported goods, where competent authorities have seized or, in the alternative, made a determination under Article 2.10 that goods infringe rights covered by the section, each Party shall authorize its competent authorities to provide right holders within 30 days of seizure or determination, with information about goods including, but not limited to, the description and quantity of the goods and the name and address of the consignor, importer, exporter, or consignee, and, if known, the country of origin and name and address of the manufacturer of the goods.
Page 16
Section 3: Criminal Enforcement
ARTICLE 2.14: CRIMINAL OFFENCES
1.[22] Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale.[23]
Option 1: [Kor/J: Willful trademark counterfeiting] copyright or related rights piracy on a commercial scale includes at least those infringements carried out in the context of commercial activity for direct or indirect economic or commercial advantage.]
Page 19
ARTICLE 2.17: EX OFFICIO CRIMINAL ENFORCEMENT
Each Party shall provide that its competent authorities may act upon their own initiative to initiate investigation or legal action [Aus/US/Mor/J/Sing/Can/NZ/Mex: in appropriate cases] with respect to the criminal offences described in Article 2.14 [EU: at least in cases of significant public interest, in accordance with national law.] [CH: at least for serious offences.]
Page 20-21
5. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures[32] that are used by [Kor/US/CH/Aus/J/Sing/NZ: at least] authors, and [US: performers] and producers of phonograms in connection with the exercise of their [US/Kor/NZ: copyright [US/KOR: or related] rights [Can/EU/CH: under the WCT and WPPT] and that restrict acts in respect of their works, [performances] [Can: fixed in phonogram], and phonograms, which are not authorized by the authors, the [performers] or the producers of phonograms concerned or permitted by law.
32 Option1 [EU/NZ/J: [J: The definition of] Effective technological measures shall be [NZ: defined by] [J/EU/Can: left to] each Party. The definition shall [at least] cover copy controls [J/CH: and access controls]].
Option 2 [US/Aus/Sing/Kor/Mor/Can: [US/Aus/Sing/Kor/Mor: Effecive] technological measure means any technology, device or component that, in the normal course of its operation, controls access to a protected work, [performance], phonogram, {or other protected subject matter}, or protects any copyright {or related rights}.] [NZ/Sing: For the avoidance of doubt, it does not include any technology, device or component that controls access to a protected work or phonogram for non-infringing purposes, such as a device that solely controls geographic market segmentation by preventing the playback of a non-infringing copy of an audiovisual work.] [US: A Party is not required to treat as an effective technological measure a measure that solely controls geographic market segmentation by preventing the playback of a non-infringing copy of an audiovisual work.]
[6. US/NZ/J: In order to provide such adequate legal protection and effective legal remedies, each Party shall provide protection at least [EU/J/CH: in appropriate cases of the following activities] [J/EU: to the extent provided by its law][33] against:
(a) the unauthorized circumvention of an effective technological measure [US/Sing/Aus: that controls access to a protected work, performance or phonogram and is] carried out knowingly [US: or with reasonable grounds to know]; and [NZ/EU/CH: propose to keep chapeau, delete(a)]
Page 26
CHAPTER FIVE
INSTITUTIONAL ARRANGEMENTS
ARTICLE 5.1: THE ACTA COMMITTEE
6. 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 of time after entry into force of this Agreement, pursuant to Article 6.2.1.
Page 27
[US: Article 5.x]
Option 1
[US: The European Union, in matters within its competence, shall exercise any right to vote that it may have with a number of votes equal to the number of its member States that are Parties to this Agreement. The European Union shall not exercise its right to vote if at least one of its member States exercises theirs and vice versa.]
———————
9 Such measures may include the 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 the 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.}
10 EU raises issue of scope of this provision
18 Negotiator’s note: legal scrub pending
22 This provision is under internal examination in the EU.
23 Each Party shall treat willful importation [US/CH/NZ/Mor/Mex/Kor/J/EU/Aus/Can: or exportation[ of counterfeit trademark goods or pirated copyright goods on a commercial scale [EU:, in accordance with its laws and regulations,] as unlawful activities subject to criminal penalties under this Article. A Party may comply with its obligation relating to exportation and importation of pirated copyright or counterfeit trademark goods through its measures concerning distribution.
33 For Japan, the addition of this option could allow the elimination of the remaining brackets in this chapeau and sub(a).
Compared to other agreements
The phrase “at least” is used:
- 13 times in the TRIPS
- 6 times the Berne Convention
- 3 times in the Part III of the TRIPS (The section of the TRIPS dealing with Enforcement)
- 3 times in the WIPO WPPT
- 2 times in the Paris Convention
- 1 time in the Rome Convention
- 0 times in the WIPO WCT
Links
September 10, 2010. ‘At least’ in ACTA – 19 times, p2pnet.net