KEI has access to a recent draft of ACTA. Chapter One, Section B of the agreement provides for “General Definitions.” It is interesting that the term “counterfeits” does not have a general definition. The ten defined terms include:
- days
- intellectual property (See below)
- Council (ACTA Oversight Council)
- measure
- person (natural or juridical)
- right owner (includes federation or assicaitons that have legal standing or authoirty to assert rights)
- territory
- TRIPS Agreement
- WTO
- WTO Agreement
ACTA is about more than counterfeits
While counterfeiting is a serious problem that deserves attention, its use in the name is widely considered a cynical bait and switch. The provisions on counterfeiting are hardly the focus. The agreement is really about the much broader topic of the enforcement of seven categories of intellectual property. According to the Chapter One general definition, intellectual property is defined as follows:
intellectual property refers to all categories of intellectual property that are the subject of section 1 through part 7 of Part II of the Agreement on Trade Related Aspects of Intellectual Property Rights.
This is a reference to the TRIPS Agreement. The seven categories are:
- Copyright and Related Rights
- Trademarks
- Geographical Indications
- Industrial Designs
- Patents
- Layout-Designs (Topographies) of Integrated Circuits
- Protection of Undisclosed Information
By highlighting the emotive and charged term “counterfeiting,” a very serious but but fairly narrow type of trademark infringement and fraud, the negotiators expect to deflect scrutiny and criticism over the whole agreement, particularly from political leaders who cannot afford to be seen defending criminals engaged in counterfeiting unsafe products. By extending ACTA to cover the enforcement of seven large categories of intellectual property rights, the impact of the agreement on access to knowledge, innovation, consumer rights, privacy, and other topics is vastly expanded.